Elmore v. Des Moines City Ry. Co.

• Citation: 224 N.W. 28,207 Iowa 862
• Decision Date: 05 March 1929
• Docket Number: 39350
• Parties: LILLIAN E. ELMORE, Appellee, v. DES MOINES CITY RAILWAY COMPANY, Appellant
• Court: United States State Supreme Court of Iowa

224 N.W. 28

207 Iowa 862

LILLIAN E. ELMORE, Appellee, v. DES MOINES CITY RAILWAY COMPANY, Appellant

No. 39350

Supreme Court of Iowa, Des Moines

March 5, 1929

Appeal from Polk District Court.--FRANK S. SHANKLAND, Judge.

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

Affirmed.

Corwin R. Bennett, for appellant.

Utterback Forrest & Robinson, for appellee.

WAGNER J. ALBERT, C. J., and EVANS, FAVILLE, KINDIG, and GRIMM, JJ concur.

OPINION

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's, 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.

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, and Artz v. Chicago, R. I. & P. R. Co., 34 Iowa 153. We are unable to agree with this contention of the appellant's. 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 Avenue 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 Avenue 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 9:00 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 a ways, 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 onto 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 onto 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 heard by some of the occupants of the bus, but were 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.

The appellee was severely injured. Upon the stopping of the bus, she was taken to a cafe 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 3rd 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.

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 practice by trial courts, and in some cases, where the disputed questions which the jury were to determine were not made clear, have reversed. Issues which are susceptible of brief condensation should not be presented to the jury through the easy expedient of copying long, involved, and complicated pleadings. See Mowry v. Reinking, 203 Iowa 628, 213 N.W. 274. In the instant case, there was no dispute that the plaintiff was injured. The issues were: (1) Was the defendant negligent in one or more of the particulars alleged in the petition? (2) Was said negligence the proximate cause of the injury? (3) Was the plaintiff guilty of negligence contributing to her injury? (4) What is the amount of plaintiff's damages? In the case at bar, we do not think that the fact that the court substantially copied the pleadings at the commencement of his instructions constitutes reversible error; for the court in its instructions submitted the specific grounds of negligence upon which recovery by the appellee could be had, and when it had done so, we think that the instructions clearly defined the grounds of negligence which the jury was to consider, and expressly limited its investigation to the same. We find no prejudicial error at this point. See Miller & Kizer v. Des Moines C. R. Co., 196 Iowa 1033, 195 N.W. 600; Wilson v. Else, 204 Iowa 857, 216 N.W. 33; Olson v. Shuler, 207 Iowa .

The court in Instruction No. 1 gives a statement of the grounds of negligence claimed by the plaintiff. The appellant further complains that, in this manner, all of said grounds of negligence were submitted to the jury, and that there was no evidence tending to establish some of...