Chesley v. Waterloo, C. F. & N. R. Co.

• Citation: 176 N.W. 961,188 Iowa 1004
• Decision Date: 13 April 1920
• Docket Number: No. 32723.,32723.
• Court: United States State Supreme Court of Iowa
• Parties: CHESLEY v. WATERLOO, C. F. & N. R. CO.

188 Iowa 1004

176 N.W. 961

CHESLEY

v.WATERLOO, C. F. & N. R. CO.

No. 32723.

Supreme Court of Iowa.

April 13, 1920.

Appeal from District Court, Black Hawk County; H. B. Boies, Judge.

Plaintiff's intestate, after alighting from a car, was struck by a passing automobile and received injuries from which he died. This action is to recover for such injuries. The district court sustained a motion for a directed verdict. Plaintiff appeals. Affirmed.Williams & Clark, of Waterloo, for appellant.

Pickett, Swisher & Farwell, of Waterloo, for appellee.

GAYNOR, J.

The facts on which the liability of the defendant company is predicated are these: Plaintiff's intestate was a passenger on one of the defendant's cars on East Fourth street. The point to which he desired to be carried is not shown. The car in which he was riding stopped at a point about midway between Sycamore and Lafayette streets. The further passage of the car was interrupted by another car standing on the same track ahead of it. This was not the place designated by the company for taking on or letting off passengers. However, passengers were frequently received and discharged at this point. It was the rule and custom of the company to stop at the near crossing for the purpose of receiving and discharging passengers, but passengers desiring to enter at this point were frequently received, and passengers were frequently permitted to alight at this point when they signaled a desire to do so. At this particular time the car on which deceased was riding stopped a few seconds at this point for the reason aforesaid. The deceased arose from his seat and proceeded to the exit, the door was thrown open, and he alighted upon the street. After he had reached the street and was in the act of crossing to the curbing, and after he had made a step or two in that direction (the exact number is in dispute) he was struck by an automobile passing along the street and was injured, and from these injuries he died. His administrator bases his right to recover on these facts. His claim is that the defendant company was negligent in permitting the deceased to alight at this point. This claim is based upon the fact that this was a very congested part of the city, and autocars frequently passed this point, thereby imperiling the safety of persons attempting to pass from the car to the curbing. There are two tracks on this line. Lafayette street crosses East Fourth street. There are tracks on Lafayette street, but these do not cross Fourth street. When they reach East Fourth street, they circle onto Fourth street, and thereafter proceed upon Fourth. The switches that carry the cars from Lafayette street onto Fourth street extend and reach the car tracks on Fourth street, a considerable distance from Lafayette street on Fourth, and cars passing on Fourth street are required to stop, necessarily, in order to allow these Lafayette cars to pass onto the Fourth street tracks.

All negligence is bottomed on the idea of a duty neglected, and it becomes important to ascertain the exact relationship existing between the deceased and the street car company at the time the injury occurred in order to say, in a legal way, what duty the defendant company owed the deceased at and immediately prior to his injury.

There is nothing in this record to show deceased's objective point, or what he intended as his destination. He did not communicate this to the one in charge of the car. When the car reached this point he voluntarily arose, indicated a desire to leave the car, and was permitted to do so. The door was opened, and he alighted. It is not claimed that there was anything defective in the car, and the evidence does not show any defect in the car that in any way contributed to his injury. The place at which he alighted was not, in and of itself, dangerous or unsafe. It was a place open for public travel, and, in the absence of any showing, we must suppose in a reasonably safe condition for the public's use. While the defendant was on the car, while he was a passenger, the company owed him the high duty which the law imposes upon common carriers. When that relationship ceased, this high duty ended. When he passed from the car onto the street, his relationship with the company ended, and he became, as any other traveler upon the public highway, subject to the perils of such travel. What legal duty then did the company violate or neglect that contributed to or caused the injury that resulted in his death? It received him as a passenger, carried him in safety to a point where he signified a desire to sever his connection with the company as a passenger. The door was opened, and he was permitted to do so. He passed from the car in perfect safety to the public streets. Upon the public streets he received the injury which caused his death. It is thought that the peril was greater at this point because of the fact that those using the streets for traffic or travel were not charged with notice that passengers were being discharged at that point, and would not be as careful in their driving and in the management of their vehicles as they would be at a point where it was customary for passengers to alight from a car; that those using the street for traffic or travel, not having any warning that passengers were about to alight from a car at a point not customarily used by the company for discharging passengers, would not be so vigilant. There is no doubt that the peril was greater, but was it a peril against which the company owed a duty to afford the deceased protection? Deceased had a right to sever his connection with the company as a passenger at any time. The company had not agreed to carry him to any particular point, nor had it assumed any contractual duty to discharge him at any particular point, nor had he advised the company at what point he desired to be released from the car and to sever his connection with the company as a passenger, except as indicated by his act in leaving at this point. He chose his time and place, and he was within his right in doing this. All passengers are discharged upon the public streets, even when discharged at the near crossing. The right of the passenger to sever his connection at any point is a legal right of which he may avail himself--a right which the company cannot deny him. At least it owes no duty to forcibly detain him after he has expressed his desire to sever his connection and leave the car. There is nothing in this record to show that the peril was greater at the point where he did alight than it would have been at the near intersection, except as that peril may be found in the suppositional fact that those using the street for traffic would be less on their guard, less watchful and careful, in the middle of the block than they would be at the near intersection.

There is no negligence predicated on the failure to warn him of the danger when he was...