Fisher v. Des Moines Transit Co.

• Decision Date: 14 November 1961
• Docket Number: No. 50394,50394
• Citation: 111 N.W.2d 633,253 Iowa 195
• Parties: Charles R. FISHER, Appellee, v. DES MOINES TRANSIT COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 633

111 N.W.2d 633

253 Iowa 195

Charles R. FISHER, Appellee, v. DES MOINES TRANSIT COMPANY, Appellant.

No. 50394.

Supreme Court of Iowa.

Nov. 14, 1961.

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

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

LARSON, Justice.

In this appeal from a judgment in favor of the plaintiff, Charles R. Fisher, the defendant Des Moines Transit Company assigns as error the trial court's refusal to sustain its motion for judgment notwithstanding the verdict or for a new trial. The issue before us is whether plaintiff, as a matter of law, failed to plead and prove actionable negligence against the defendant when he alleged in Paragraph 3 of his petition that while he was a passenger for hire and 'before he reached his seat, the Defendant's employee driver negligently jerked the bus so violently that Plaintiff was thrown to the floor and injured and damaged as hereinafter stated'; alleged in Paragraph 4 that said negligence was 'a proximate cause of the Plaintiff being thrown to the floor of the trolley car'; and introduced the testimony of a lady passenger, a doctor, and himself as to the circumstances involved. We think plaintiff did plead actionable negligence and that the testimony introduced before both parties rested did generate a jury question as to defendant's negligence in operating its bus at that time and place.

The record discloses plaintiff, 86 years of age, boarded defendant's curbliner at the corner of Fourth and Locust Streets in Des Moines, Iowa, sometime around 2:30 p. m. on March 17, 1960. Several persons preceded him aboard, including the witness Eulah Swartslander, who took a seat in the second row facing the driver on the left-hand side of the bus. A long parallel-to-the-aisle seat separated the row seats from the driver.

Eulah Swartslander testified she observed the plaintiff put his token in the fare box and that as he turned to find a seat the bus started. She said it seemed to roll backward and then started forward with a jerk. To the question, 'Was the jerk with enough violence that you could feel it there in your seat?' she said, 'Yes, I could.' She further testified that the start threw plaintiff off balance, that he went on over, head first against the seat across the aisle from her, striking his head against the edge of the seat; that after a couple of men helped him up, he complained to her of his head, and that he was taken off the bus and placed in an ambulance at Third Street.

On cross-examination she said there was snow on the streets, but that the sidwalks were clear; that she did not observe the condition of the street there, but would not say it was slick. Although she noticed the jerk when the bus started, she wouldn't know whether the wheels were turning prior to hitting a dry spot.

The plaintiff testified he was the last of eight or nine persons to board the bus at that stop, and that 'the car started moving just as soon as I got my token in.' He explained that as he started for a seat the bus moved nice and slow, and then all at once just went 'zip'. As he raised his foot to take a step his feet went right out from under him and he took a nose dive right under the first seat some ten feet back in the bus. He said, 'Just as I raised my foot up, the car took that jump. * * * I went right under the seat.' In answer to the question, 'What caused your feet to go from under you?' plaintiff said, 'The momentum of the car; it was so quick, such a jerk.' He testified that after his fall he couldn't get up until help came, that he was taken to Mercy Hospital for first aid, and then took treatments from Dr. McClean for some six months. His neck still hurts once in a while.

Dr. E. D. McClean testified that he attended plaintiff after his injury on the bus, that plaintiff was kept in the hospital ten days, with six pounds of traction on his head. His condition was diagnosed as a whiplash injury of the cervical and possibly involving the first dorsal vertebra. The injury resulted in a narrowing of the orifice through which the nerves come out of the spine and caused pressure on the nerves manifested by general pain and tenderness over the affected area extending from about the second cervical down to the first lumbar. At the time of the trial plaintiff had numbness of both thumbs and the first adjacent finger caused by nerve injuries to the median nerve. Rotation of the head on the neck was limited to 80 per cent of normal, dorsal flexion to about 30 per cent of normal, and anterior flexion to about 80 per cent of normal. This testimony concluded plaintiff's case.

Defendant's motion for a directed verdict on the ground that there was no evidence from which the jury could find defendant negligent or that such alleged negligence was the proximate cause of plaintiff's injury was overruled, and it then introduced the testimony of James M. Dew, the employee operator of its curbliner. His testimony did not injure plaintiff's case.

Mr. Dew testified the fare box on the bus involved was located in front of the driver at his right, that there is a rod to hold onto back of the driver extending from the floor to the ceiling as support for the night curtain, that the first double seates are some 10 feet back from the fare box, that there are no upright rods between the driver and those seats, but there are ceiling rods with grips hanging down for passenger support. He recalled the weather was cold on March 17, 1960, and there was some slush along the curb where the accident occurred. He said he recalled the plaintiff boarding the bus. He testified that after Fisher put his coin in the box, 'I started out on one point, that's one point of power that comes as you press down on the pedal, and (he found) there was no traction under the rear wheel on the curb side, or on the right-hand side. It took a little more power to take it out of there, and I added a little more power. And as the bus moved forward, it got onto a stretch of pavement that didn't have any ice on it, apparently, and it gave a slight jerk.' On cross-examination he said, 'I testified that the bus, the weight that it is, with dual wheels, stood there on the slushy street and the wheels spun. That is a common occurrence if the street is just a little bit wet, it can spin a wheel without having any slush on the street. That was happening frequently at that time.' (Emphasis supplied.) He further testified on cross-examination that he observed the plaintiff walk up the steps as he boarded the bus, noted he was elderly, wore glasses, and had difficulty making the steps, that as there had been frequent occurrences that day when the wheels would spin and a jerk occur when they caught hold, it was on his mind as he started the bus at that time, that it came as no surprise to him when the wheels spun and the bus jumped forward. To the question, 'Now, you made this statement in your testimony, 'I didn't want to throw him (plaintiff) any further than he had already been thrown'' he answered, 'Yes, sir.'

'Q. How far had he already been thrown? A. That I couldn't say.

'Q. How did you know he had been thrown? A. Because I felt the jerk as well as he did, and then I took it for granted that he had been thrown.

'Q. The jerk then was violent enough to throw one standing, is that correct? A. I don't know how much of a jerk there was. I was seated. There is a difference in feeling of how much a jerk there is between seated personnel and the people that are standing.

'Q. You mean it appears much more violent to those standing than those seated? A. Yes, sir.

'Q. And from what you felt of the jerk seated, were you of the opinion that it was violent enough to throw one standing? A. * * * when the bus jerked it wasn't much of a jerk.

'Q. I thought you told me you thought from the way the bus jerked you assumed he was thrown? A. That's right. I am not denying that there was a jerk.

'Q. Was it because of the nature of the jerk that you felt that he had been thrown to the floor? A. That's right.'

Defendant called no other witnesses, but when its motion to strike Paragraphs 3 and 4 of plaintiff's petition and its motion to direct were overruled, objected to the court's statement of the case in its instructions to the jury because is contended no cause of action was alleged against defendant.

I. Under Rules 69 and 70, Rules of Civil Procedure, 58 I.C.A. in this state, pleadings are the 'parties' written statements of their respective claims or defenses' made in clear and concise language which 'avoid repetition or prolixity' and simply require that 'the facts constituting the cause or causes of action' be asserted along with 'the relief demanded, and, if for money, the amount thereof.' As we understand it, defendant contends the facts set forth in Paragraph 3 are not sufficient to state a cause of action. It argues a statement that its 'driver negligently jerked the bus so violently that Plaintiff...