Edwards v. Des Moines Transit Co., 49847

• Decision Date: 15 December 1959
• Docket Number: No. 49847,49847
• Citation: 99 N.W.2d 920,251 Iowa 163
• Parties: Rachel EDWARDS, Appellee, v. DES MOINES TRANSIT COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 920

99 N.W.2d 920

251 Iowa 163

Rachel EDWARDS, Appellee, v. DES MOINES TRANSIT COMPANY, Appellant.

No. 49847.

Supreme Court of Iowa.

Dec. 15, 1959.

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellant.

Glanton & Glanton, and Duffield, Pinegar & Spencer, Des Moines, for appellee.

LARSON, Chief Justice.

Plaintiff was injured while riding as a passenger on defendant's bus. Her petition was in two counts, Count I being based upon general negligence under the doctrine of res ipsa loquitur and Count II on specific allegations of negligence. At the conclusion of plaintiff's evidence and upon defendant's motion to strike, she withdrew Count II. A verdict was returned in the sum of $2,000 for plaintiff. The court overruled defendant's motions to direct, for judgment notwithstanding the verdict, and for a new trial, and defendant appeals.

Defendant relies upon four assignments of error, but the sole issue involved is whether under the evidence plaintiff had established a prima facie case for the jury under the doctrine of res ipsa loquitur.

I. We need not explore the entire field of res ipsa loquitur in order to determine its lack of applicability here. It is a doctrine of limited and restricted scope ordinarily to be applied sparingly and with caution and only where the facts and demands of justice make its application essential. 65 C.J.S. Negligence § 220(10), pp. 1031, 1032; Shinofield v. Curtis, 245 Iowa 1352, 1361, 66 N.W.2d 465, 50 A.L.R.2d 964. While a common carrier of passengers is bound to exercise the utmost care consistent with the operation of its business, it is not an insurer of their safety. Waterloo Savings Bank v. Waterloo, C. F. & N. R., 244 Iowa 1364, 1367, 60 N.W.2d 572, and authorities cited.

Every injury to a passenger aboard a common carrier does not raise the inference of company negligence. Cahill v. Illinois Central Ry. Co., 148 Iowa 241, 246, 125 N.W. 331, 28 L.R.A.,N.S., 1121; 35 Iowa Law Review 393. The accident causing the injury must be such as in the ordinary course of things does not happen if those in charge of the vehicle use proper care. Sample v. Schwenck, 243 Iowa 1189, 1198, 54 N.W.2d 527, and citations; 65 C.J.S. Negligence § 220(8), p. 1007; 38 Am.Jur., section 295, page 989. It is, therefore, the primary duty of the injured party to disclose facts which in law are recognized as those that speak for themselves or disclose a situation wherein it may be said that, but for defendant negligence, the injury and damage could not have occurred. Walters v. Des Moines City Railway Co., 191 Iowa 196, 179 N.W. 865; Wheeler v. Des Moines City Railway Co., 205 Iowa 439, 215 N.W. 950, 55 A.L.R. 473. Stated otherwise, in this type of case the plaintiff only needs to show that the injury resulted from some irregular or unusual operation or movement of the passenger carrier, the nature of which the defendant has or is charged with knowledge.

It is true we have also said the doctrine of res ipsa loquitur is a rule of evidence originally based on the theory that he who has charge of the thing that causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it. Brown v. Sioux Building Corp., 248 Iowa 948, 83 N.W.2d 471, and citations; 38 Am.Jur. 995, section 299; Savery v. Kist, 234 Iowa 98, 103, 11 N.W.2d 23, 25; Van Heukelom v. Black Hawk Hotels Corp., 222 Iowa 1033, 1043, 270 N.W. 16, and cases cited.

In Stites v. Des Moines Transit Co., 249 Iowa 185, 188, 85 N.W.2d 905, 906, we explained it this way: 'Simply stated it is a rule of evidence. It is that where injury occurs by an instrumentality under exclusive control and management of the defendant and the occurrence is such that in the ordinary course of things it would not happen if reasonable care were used, the happening permits but does not impel an inference that defendant was negligent. Shinofield v. Curtis, 245 Iowa 1352, 1360, 66 N.W.2d 465, 50 A.L.R.2d 964, and cited authorities.'

In the record before us we find that defendant does not deny that the bus and all its mechanical devices attached were under its exclusive control. However, it points to the rule in Stites v. Des Moines Transit Co., supra, that in such cases there is also the necessity for plaintiff to show that the fall was due to some out-of-the-ordinary operation of the bus which would give rise to an inference of its negligence.

The only witness who testified as to the occasion was plaintiff herself. Mrs. Edwards said: 'I rang the bell to get off by reaching up and pulling the cord. He drove by where he was going to stop. The bell sounded and I got up. I got to get up, I walked down the seat to get up, and the bus looked like it jerked. (Emphasis supplied.) I don't know how it happened but it just jerked and when that bus jerked it just threw me. I didn't have any holds. I was off balance and just threw me right back just like that and it just hit me right across the center of my back and my neck * * *.' She also said: 'I don't remember hardly anything, it was done so quick. I fell against a rod in the street car.' In answer to the question, 'What made you fall?' she replied: 'Just from the shock of the bus, I think it was. It just looked like it jerked and I had to let loose of the thing you pull, * * * I wasn't holding on that anymore, and then the bus just gave a jerk or something. I don't know what it was that happened but it just happened so quick I don't know what had happened until I got into the telephone company.'

On cross-examination she testified: 'I was facing the front of the bus at the time I lost my balance to get out from the front door. The jerk that I referred to happened so quick that I didn't know what happened, whether it was a jerk in the starting or stopping of the bus. The bus was moving when I rang to get off. That was when the trouble started. I guess the jerk was in stopping. I don't know what happened. * * * At the time I got up off my seat, trying to get off, I was facing the front. The bus was moving and it jerked there somewhere, I don't know. * * * It did not throw me back in my seat. * * * I never did drop down. I hit my back against the seat in front of me. The one I sat in didn't have no bar across.' (Emphasis supplied.)

We have set out the pertinent part of her testimony. It discloses that when plaintiff realized the bus had arrived at 9th and High Streets, she arose, pulled the cord to alert the driver that she wished to alight, and as she proceeded toward the aisle and exit before the actual stop, she lost her balance and fell against an iron rod in the bus. She retained no hold on anything to steady herself against the normal and usual motions of a bus being brought to a stop.

It is defendant's position that, even viewing the testimony in a light most favorable to plaintiff, this evidence falls far short of disclosing an unusual or extraordinary operation of the bus or such an operation as would justify the submission of that factual issue to a jury. We did say in the Stites v. Des Moines Transit Co. case, supra, that from 'common experience' it is known that one may, and often does, trip, stumble, and even fall, while a passenger on a street car or bus which is being operated normally, and that such incidents frequently happen in the ordinary course of things, irrespective of what the defendant did or did not do. It is also true that such circumstances would scarcely meet the test of disclosing a situation where the demands of justice make the application of presumed negligence essential.

Plaintiff claims the severity of her injury was evidence of the violence of the jerk. However, the...