Burger v. Omaha & C.B. St. Ry. Co.

Decision Date09 July 1908
CourtIowa Supreme Court


Appeal from Pottawattamie District Court.--HON.W. R. GREEN, Judge.

ACTION to recover damages for a personal injury. Trial was had to a jury, resulting in a verdict and judgment for plaintiff. Defendant appeals.


Harl & Tinley, for appellant.

S. B Wadsworth, F. E. Gates, and George B. Lynch, for appellee.



Defendant operates a street railway line in Council Bluffs, and the claim of plaintiff is that, while attempting to board one of defendant's cars, at what is known as the "Gun Club Station," the car was suddenly started forward, whereby he was thrown to the ground and injured. We shall take up the several matters of error occurring on the trial in the order of their presentation in argument.

I. As a witness in his own behalf, plaintiff testified, in chief, that his occupation was that of a barber; that before the accident in question, he was an able-bodied man. He was then asked: "What was your earning capacity per month before the time of the accident?" This question was objected to as incompetent and immaterial, and the objection was overruled. The ruling is assigned as error. We think there was no error. At the time of the ruling only the fact that plaintiff was by trade a barber appeared of record. All the matters on which the argument for error is built up came out subsequently on cross-examination. If counsel conceived that the effect of such matters was to make clear the incompetency of the evidence given on direct examination, respecting earning capacity, it was open to them to prefer challenge thereto, but this they did not do.

II. At the close of all the evidence defendant moved for an instructed verdict in its favor, on the grounds: (1) Negligence on the part of defendant had not been proven; (2) the acts of negligence sought to be established were not the proximate cause of the injury of which plaintiff complains; (3) freedom from contributory negligence had not been proven. The motion was overruled, and of this defendant complains. A determination of the question thus made involves, of course, a review of the evidence.

Presenting the same in the light most favorable to plaintiff, as we are required to do, there was warrant for a jury finding of this state of facts. Defendant's line of railway, at the point in question, runs east and west, and is double tracked; the east-bound cars using the south track. While there is a platform on the north side of the tracks at the Gun Club Station, there is none on the south, and entrance to cars must be made from the ground. Plaintiff had been attending a shoot at the gun club, and, in company with one Craybill, came down from the club grounds--carrying his gun case in his hand--to take the car east from the station. As the car approached, a stop signal was given, and they stepped across to the south side of the tracks. Plaintiff says that when the car stopped, three or four passengers got off; that "Craybill got on the car first, and I took my gun in my right hand and set it on the platform, and he took the gun. I took hold of the (hand) rail with my left hand, and put my right foot on the step, and just started to get on, and took hold of the opposite rail, when the car started with a jerk, and I fell on the rail behind the car. The car was standing still when I put my gun on the platform, and the instant I put my foot on the step it started, just as I went to take hold of the opposite rail." Craybill, as a witness for plaintiff, says: "Three or four persons got off the car. I climbed right on as soon as these people got off. Burger took hold of the rail; handed me his gun first, just as quickly as I got on. He got hold of the railing and tried to get on. He undertook to make a step up there. I think he had a foot on the step. The car started as tight as it could go from the start. Burger fell down. It dragged him down. After he fell the car went from one hundred and fifty to two hundred feet." Discussion ought not to be necessary to make it clear that here was a case to go to the jury. Accepting plaintiff's story--as the jury might well do--he was in the exercise of due care. The defendant was negligent in starting its car before passengers had opportunity to board the same, and in the manner of starting; and such negligence was the proximate cause of the accident.

III. Some of the witnesses for defendant testified that plaintiff continued his hold upon the hand rails after the car started and ran along beside the car a distance of several feet before his hold was broken or relinquished, and he fell. Predicating its request on the testimony to this effect, defendant asked an instruction directing the jury that, if the facts were found to be as thus testified to, plaintiff could not recover, because the wrongful starting of the car, if it was wrongfully started, was not the proximate cause of plaintiff's injury. In a further request the court was asked to say that, upon a state of facts so found, defendant could not be held liable for the injury sustained, and this because, "by holding to the moving car and attempting to get on the same, plaintiff assumed any danger of injury arising therefrom." In a still further request the court was asked to say that upon a state of facts so found plaintiff was guilty of contributory negligence as a matter of law, and hence could not recover. Each of these requests were refused, and the refusal as to each is denounced as error. We think there was no error. According to our understanding, it is no part of the contention of counsel that plaintiff acted in violation of any duty he owed to himself when he seized the hand rails and made his initial attempt to step upon the car platform. On the contrary, as we gather, this seems to be the theory of counsel, upon which the requests are based: That, conceding the premature starting of the car, and that the same was negligent, if the immediate effect thereof was not to throw plaintiff to the ground, but, instead, he maintained his hand hold on the rail, and ran alongside for some distance in an effort to accomplish a boarding, but finally relinquished his hold because unable longer to maintain the same, and there being no intervening act of defendant following the starting of the car, save the continued forward movement thereof, then the fall was not the proximate result of the wrongful act in starting the car, and, as that act is the sole matter of negligence complained of, as matter of law there can be no recovery. So, also, that under such circumstances the act of plaintiff in running alongside amounted in law to contributory negligence, and he assumed all risk of accident in so doing. The theory is well conceived in the interests of defendant, but it will not bear analysis. Of necessity it is based upon the supposition that the negligence of defendant ceased of effect once the immediate shock, incident to the premature starting of the car, had spent its force; that with the forward movement of the car, due care resumed its dominant sway. To hold in conformity with the view thus taken would be to write a new chapter on the law of negligence. Instead, it is the law, as universally applied, that where one by his negligent act thrusts another into a position of danger, the act--and the negligence by which it is clothed--continues and controls as long as the danger continues, unmodified by any independent, affirmative, and voluntary act on the part of the person affected, or by some intervening controlling circumstance. And it is for the jury to say at what point or juncture, and in what particular, such person ceased to be dominated in his conduct by the act of negligence, and resumed voluntary control over his own actions. To search out and cite authorities in support of these conclusions would seem to be a...

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