Elmore v. Des Moines City Ry. Co., 39350.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: WAGNER
• Citation: 224 N.W. 28,207 Iowa 862
• Parties: ELMORE v. DES MOINES CITY RY. CO.
• Docket Number: No. 39350.,39350.
• Decision Date: 05 March 1929

207 Iowa 862
224 N.W. 28

ELMORE
v.
DES MOINES CITY RY. CO.

No. 39350.

Supreme Court of Iowa.

March 5, 1929.

Appeal from District Court, Polk County; Frank S. Shankland, Judge.

Action for personal injury. Verdict and judgment for the plaintiff. The defendant appeals. Affirmed.

[224 N.W. 29]

Corwin R. Bennett, of Des Moines, for appellant.

Utterback, Forrest & Robinson, of Des Moines, for appellee.

WAGNER, J.

The plaintiff brings this action to recover damages for personal injury alleged to have been caused to her as a passenger upon a bus of the defendant company, by reason of the negligence of the driver of said vehicle. Upon a verdict in favor of the plaintiff, judgment was rendered against the defendant for the sum of $10,000 and costs. The defendant appeals from the judgment, and from the order of the court overruling its motion for a new trial.

[1][2] Many alleged errors are assigned, which will be hereinafter considered. The first contention of the appellant is that the evidence of the plaintiff is absurd, improbable, and insufficient to warrant the verdict. In support of its contention, the appellant relies upon Graham v. Chicago & N. W. R. Co., 143 Iowa, 604, 119 N. W. 708, 122 N. W. 573, and Artz v. C. R. I. & P. R. Co., 34 Iowa, 153. We are unable to agree with this contention of the appellant. No motion for directed verdict was made, either at the close of the plaintiff's evidence, or at the conclusion of the taking of all the evidence. The proposition as to the insufficiency of the evidence was raised in the motion for a new trial. We will briefly refer to the evidence. Douglas street runs east and west. Beaver avenue makes an acute angle therewith to the south, but runs generally north and south. The route over which the bus was operated runs in a westerly direction on Douglas street until Beaver avenue is reached, where the turn is made in a southerly direction thereon. The injury occurred on the evening of December 18, 1926, between 8:30 and 9 o'clock p. m. The appellee was a passenger upon the bus. She desired to alight at Beaver avenue. The bus was stopped at approximately the east line of the intersection of said two streets. The entrance to the bus was at the front end on the right-hand side.

The material portion of the appellee's testimony as to the proposition we are now considering is substantially as follows: “When he stopped the bus, I got up to get off. He opened the door and I stepped down on the step on the ground. I think there was only one step and I was just stepping off on the ground; and the bus lurched back aways and then started forward. It threw me out. I landed on my feet in a sort of unbalanced--I couldn't get my balance--I couldn't get on my feet. They started and turned south at the same time. I put my hand out against the bus and pushed myself up to get away from it, but it just pushed me along with it until I fell and grabbed the bumper at the side and that jerked me around toward the back of the bus. I grabbed the first thing my hands touched. As I grabbed the bumper, the bus was still moving and it jerked me around behind it. I was falling the opposite way from the way the bus was going, that was the way I was thrown and at the same time I could see the headlights of the cars (approaching from the rear), they were right behind. When I grabbed that bumper, my face and arms were toward the back end of the bus, my legs toward the front end. I was then being dragged by the bus on my stomach. I reached up with one arm and got my elbow over the fender so I sort of turned myself over from my stomach to my back. From that time I was dragged on my back, that is my hips and legs, I pulled my body up off the ground. I held on to the bumper. I was dragged from this position at Beaver and Douglas to Urbandale and Beaver; the distance is three fourths of a mile. The driver of the bus did not give me any notice or warning that he was going to start the bus. The bus stopped on the northeast corner of Douglas and Beaver. It turned immediately south, in other words, cut the corner. I continued to hold on to this bumper on the rear end of the bus to protect myself, I did not know where I would be thrown or run over by another car.”

On cross-examination she testified substantially as follows:

“I don't know how far backward it (the bus) moved. I was still on the bus when it started forward. I did not alight, I was thrown. I was ready to alight when the bus started the lurch backward; when it lurched forward it threw me off. I did not move from that step before I fell. I fell toward the bus as it started up. I tried to get my balance and to right myself and I couldn't. I had lost my balance, kind of stumbling, falling, tried to right myself. I put my right hand against the side of the bus until I fell and the back end of the bus was even with me then at that time.

Q. It wasn't the turning of the bus then that caused you to fall? A. Yes sir, I could not get away from it and finally knocked me all the way down. I do not believe I would have fallen against the bus if it had kept straight forward. I grabbed as I was falling.”

There is evidence that a party following in a Ford, and seeing the dilemma in which the woman was placed, made efforts to communicate with the driver and have him stop, but without avail. The plaintiff was screaming as the bus went south, and her wails were indistinctly

[224 N.W. 30]

heard by some of the occupants of the bus, but supposed to come from occupants of a car following.

There is no contention made by the appellant as to negligence of the appellee contributing to her injury. Its sole contention at this point is that the plaintiff's testimony is so absurd, improbable, and preposterous that the court should not allow the verdict to stand. While there is testimony offered by the appellant tending to show that plaintiff's version as to the accident is incorrect, yet the conflicting testimony made it a question for the determination of the fact finding body. The question of the credibility of the witnesses was for the jury. The aforesaid cited cases are clearly distinguishable from the instant case. Appellant's contention at this point is devoid of merit. See Burger v. Omaha & C. B. St. R. Co., 139 Iowa, 645, 117 N. W. 35, 130 Am. St. Rep. 343.

The appellee was severely injured. Upon the stopping of the bus, she was taken to a café near by, and laid upon a cot. She had sunk into unconsciousness and was soon thereafter removed to the hospital, and had only partially regained consciousness the next morning. The appellee was 40 years of age, was pregnant, and on the morning of December 20th gave birth to a baby, which was premature by one month. The baby died on the morning of December 24th, from concussion or hemorrhage of the brain. Medical testimony reveals the fact that the coccyx of the appellee is broken loose from the rest of the spinal column; that the injury is permanent. The appellee has suffered great pain and will continue to suffer. She is unable to sit down except first on one side and then on the other of her body. When lying upon her back, she suffers pain. Shortly before the trial, examination revealed that there had been no reuniting of the bones. It is shown that her nerves are shattered. Medical testimony further reveals that there is little probability that there will ever be a reuniting of the broken sections in the spinal column, and that about all that can be done is to operate and remove a portion of the bone, but that she will always be in an impaired condition. She was in the hospital until the 3d of January, 1927. She was a switchboard operator until August, 1926, since which time her occupation has been the performing of her household duties as a housewife in keeping her own home. It is conceded that the medical and hospital bills were $250.

[3] It is contended by the appellant that the court erred in that he substantially copied the pleadings at the commencement of the instructions. We have repeatedly condemned this...