Blumenthal v. Union Electric Company

• Decision Date: 11 January 1906
• Citation: 105 N.W. 588,129 Iowa 322
• Parties: FREDA BLUMENTHAL, Administratrix, v. UNION ELECTRIC COMPANY, Appellant
• Court: Iowa Supreme Court

105 N.W. 588

129 Iowa 322

FREDA BLUMENTHAL, Administratrix, v. UNION ELECTRIC COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 11, 1906

Appeal from Dubuque District Court.-- HON. M. C. MATHEWS, Judge.

SUIT to recover damages for the death of Mrs. Delia Blumenthal. There was a judgment for the plaintiff, from which the defendant appeals.-- Affirmed.

Affirmed.

Hurd Lenehan & Kiesel and Matthews & Frantzen, for appellant.

McCarthy Kenline & Roedell, for appellee.

OPINION

SHERWIN, J.--

The defendant operated an electric street railway in the city of Dubuque, and the deceased was a passenger on its car No. 34, which at the time in question was rapidly descending a steep grade on Dodge street. Flashes of fire, accompanied by smoke and hissing noise, appeared around the forward switch in the car, whereupon the deceased and others jumped from the car. In alighting, the deceased received injuries which caused her death soon thereafter. The court admitted testimony tending to show that, immediately before and at the time the fire appeared, the car was running at a high rate of speed, and that it had a rocking or bouncing motion, and also that the track was uneven. The defendant asked that such evidence be limited to the question of its negligence in causing the fire; the court refused to so limit it, and error is predicated on the ruling. It is, of course, possible that the deceased may have left the car solely on account of the fire, but the evidence is by no means conclusive on this point. Her action may have been influenced by the combination of speed and flame, for both of which the defendant may have been liable. No one can say definitely as to this. It was a question for the jury to determine from all of the facts and circumstances surrounding her at the time, and it was therefore entirely proper to submit for its consideration all of those facts and circumstances. See Eginoire v. County, 112 Iowa 558, 84 N.W. 758.

Certain rules of the defendant regulating the speed of its cars downhill and requiring stops at specified points were admitted, over the defendant's objection. No possible prejudice could have resulted from their consideration by the jury. They did not require a higher degree of care than is imposed by law, and, further, their effect was properly limited by an instruction. Hart v. Railway Co., 109 Iowa 631.

Evidence as to the speed at which the same car had been run at a different time and place was admitted, but it was afterward withdrawn, and the jury directed not to consider it. No prejudice appears from the introduction of the testimony, and we will not reverse on account thereof. State v. Booth, 121 Iowa 710, 97 N.W. 74; State v. Helm, 97 Iowa 378, 66 N.W. 751.

There was evidence tending to show that when the fire appeared the conductor of the car became frightened and jumped from the car before the deceased did, and that, while the motoneer remained at his post, he said nothing to quiet the alarm of the passengers. The defendant asked that this evidence be considered only on the question of the negligence of the deceased in leaving the car when she did, but the request was refused, and we think rightly so. It was certainly competent to show any act of negligence on the part of the appellant that produced a condition apparently dangerous to passengers; and, if the conductor abandoned the car because of his incompetency to deal with the condition then existing, or because of his inexperience, it was matter for the jury to consider in determining whether the appellant was negligent in the operation of that particular car at the time. The degree of care demanded by the law in cases of this kind requires the employment of men of experience and competency, and a failure in this respect is negligence. Electricity is a...