Fitzgerald v. Des Moines City Railway Co.

• Decision Date: 09 March 1926
• Docket Number: 37133
• Citation: Fitzgerald v. Des Moines City Railway Co., 201 Iowa 1302, 207 N.W. 602 (Iowa 1926)
• Parties: ARTHUR FITZGERALD, Appellant, v. DES MOINES CITY RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

207 N.W. 602

201 Iowa 1302

ARTHUR FITZGERALD, Appellant, v. DES MOINES CITY RAILWAY COMPANY, Appellee

No. 37133

Supreme Court of Iowa, Des Moines

March 9, 1926

REHEARING DENIED JUNE 21, 1926.

Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.

ACTION to recover damages for personal injury sustained by the plaintiff, which was caused at or about the time the plaintiff alighted from a street car belonging to the defendant. The plaintiff came in contact with an automobile while passing from the street car to the sidewalk. The facts appear in the opinion. The court directed a verdict in behalf of the defendant, and the plaintiff appeals.

Reversed.

C. C Putnam and Guy S. Calkins, for appellant.

Corwin R. Bennett, for appellee.

FAVILLE, J. DE GRAFF, C. J., and STEVENS and VERMILION, JJ., concur.

OPINION

FAVILLE, J.

On the night of December 5, 1923, appellant was a passenger on a street car belonging to appellee, traveling from Des Moines to Valley Junction. The street car was equipped with double doors at the center in the side of the car. When the car arrived at Valley Junction, appellant signaled at a proper time for the conductor to stop the car at the intersection of Fifth and Maple Streets. The conductor gave the signal, and appellant left his seat and went to the doors in the center of the car. The doors were directly in front of the station of the conductor, who was facing toward them. The conductor called the street and opened the door. Appellant immediately stepped off the car, while it was still in motion. He did not know it was moving. It was dark at the time. As appellant stepped from the car, he stumbled, and staggered toward the curb. An automobile was approaching, six or eight feet behind the car. The distance between the car track and the curb was twenty-six feet. Appellant went ten or twelve feet, when he was struck by the automobile. He fell to the pavement, and his left leg was broken. The automobile did not strike him with force, but brushed or touched him. It is appellant's contention that the fact that the car was still in motion at the time he stepped to the pavement caused him to lose control of his manner of locomotion, and caused him to stagger toward the curb, and that, while he was endeavoring to secure control of his movements, the on-coming automobile brushed against him, and he fell to the pavement.

The foregoing is a summary of the evidence in behalf of appellant, and, in view of the order of the trial court in directing a verdict, it must, for the purpose of this appeal, be considered as the established facts of the case.

I. One ground of the motion for directed verdict raises the question as to whether or not there was any evidence of negligence on the part of appellee sufficient to take the case to the jury.

Appellant had signaled for the car to stop. To the knowledge of the conductor, he had placed himself in front of the exit doors. He was immediately in front of the conductor, who was facing in the same direction. The doors were opened, to permit appellant to alight. The car was near the regular stopping place for the discharge of passengers.

It is the quite generally recognized rule that, when a passenger upon a street car has passed from the car in safety to the public street, thereafter the street car company owes no affirmative duty to the passenger. Such rule has been recognized by us in Chesley v. Waterloo, C. F. & N. R. Co., 188 Iowa 1004, 176 N.W. 961; Morris v. Omaha & C. B. St. R. Co., 193 Iowa 616, 187 N.W. 510; Mathis v. Des Moines City R. Co., 196 Iowa 1028, 195 N.W. 620. See, also, Jacobson v. Omaha & C. B. St. R. Co., 109 Neb. 356 (191 N.W. 327); Hammett v. Birmingham R. L. & P. Co., 202 Ala. 520 (81 So. 22); Creamer v. West End St. R. Co., 156 Mass. 320 (31 N.E. 391); Buzby v. Philadelphia Traction Co., 126 Pa. 559, 17 A. 895; Street Railroad v. Boddy, 105 Tenn. 666 (58 S.W. 646); Macon R. & L. Co. v. Vining, 120 Ga. 511 (48 S.E. 232).

The question at this point, however, is as to whether or not appellee was guilty of negligence in so conducting the operation of its car that appellant did not "alight in safety" upon the public street. A high degree of care rests upon the street car company in respect to enabling a passenger to alight from a car in safety. We have applied the rule in cases where a car stops to enable a passenger to alight, and the car is started or jerked while the passenger is in the process of alighting, and injury results therefrom. See Root v. Des Moines City R. Co., 113 Iowa 675, 83 N.W. 904; Lang v. Marshalltown L., P. & R. Co., 166 Iowa 548, 147 N.W. 917; Heinze v. Interurban R. Co., 139 Iowa 189, 117 N.W. 385; Boice v. Des Moines City R. Co., 153 Iowa 472, 133 N.W. 657; Farrell v. Citizen's L. & R. Co., 137 Iowa 309, 114 N.W. 1063; Walters v. Des Moines City R. Co., 191 Iowa 196, 179 N.W. 865.

In Walters v. Des Moines City R. Co., supra, the plaintiff was injured on a street car. The plaintiff was about to step from the car, when the car suddenly started, without warning, and the plaintiff was injured. In that case we referred to the fact that the opening of the door was an invitation to the plaintiff to alight from the car, and that, in responding to such invitation, she had released her hold on the railing by which she steadied herself in standing, and had stepped back, and was about to turn to go out, when the car was suddenly started. Whether the opening of the doors, under such circumstances, is an invitation to a passenger to alight, is a question that has never been directly before this court, and was referred to arguendo in the Walters case. The precise question, however, has been before other courts under somewhat similar circumstances.

In Alstead v. Kapper (Wash.), 236 P. 799, the court considered a case where a woman signaled a motor bus to stop. The night was dark and foggy, and she went to the door and found it open, and felt no motion of the car, and thought it had stopped, and thereupon stepped out. The bus had not come to a complete stop, and she fell to the ground and was injured. The court held that the case presented a jury question, for it to determine whether a passenger on a bus equipped like the one in question, having signaled the car to stop, approaching the point of exit, and there finding the door open, would be justified, under the facts shown, in assuming that it had in fact stopped.

In Blue Grass Traction Co. v. Skillman (Ky.), 102 S.W. 809, a passenger was injured in stepping from a car in the night, not being conscious that the car was still in motion. The conductor announced the station, and had opened the door for passengers to alight, and the conductor could see plainly that the passenger was starting to get off. The court held that it was not error to overrule a motion for a directed verdict.

In Ferrell v. Washington Water Power Co., 83 Wash. 319 (145 P. 442), a passenger on a street car was in a position to alight when the conductor opened the gates while the car was still moving. The passenger, thinking that the car had stopped, started to alight, when the car gave a sudden jerk, and she was thrown to the pavement. On the question of the opening of the door, the court said that whether the opening of a door or gate on a moving vehicle is an invitation to a passenger to alight, is a mixed question of law and fact, to be resolved in the light of all the attendant facts and circumstances; and it was held, under the facts of that case, that:

"It would be going too far to hold that the opening of the door was not an invitation to appellant to pass out of the car, or at least step down into the vestibule."

In Tillery v. Harvey (Mo. App.), 214 S.W. 246, it is said:

"Plaintiff had a right to rely upon the custom shown in evidence,--that is, for the motorman not to open the exit doors for passengers to alight until the car was brought to a full stop. * * * If the motorman opened the exit doors, his action could not have been construed in any other light than as a direction for passengers to alight then and there. Plaintiff, in the absence of anything to the contrary, had a right to conclude that the car had stopped for the purpose of permitting him to alight at that place."

In Elwood v. Connecticut R. & L. Co., 77 Conn. 145 (58 A. 751), the plaintiff was a passenger on a car; and, as the car neared the terminus of the road, and was moving slowly, the conductor called the stopping point, and left the platform, and began putting up the rear fender of the car. The plaintiff, believing from the conductor's call and conduct and the appearance of the car that it had fully stopped, went to the rear platform, and stepped off at right angles. The car was, in fact, moving slowly, and the momentum caused the plaintiff to fall and be injured. The court said:

"Whether the acts and conduct of the conductor amounted to an invitation to the plaintiff to get out of the car when she did, was, in this case, rather a question of fact than of law."

In Duffield v. Payne, 66 Cal.App. 767 (227 P. 217), the cases are reviewed, and the court said:

"When the brakeman, knowing that Duffield [plaintiff] was standing with his hand on the guard rail, ready to go down the steps to alight, opened the vestibule doors, and then turned and walked back to the vestibule of the next car, it was most natural for Duffield, if he believed that the train had stopped, to interpret the acts of the brakeman as an invitation to alight."

In a number of cases involving steam railroads, it has been held that the calling of a station and the fastening back of a car door while a railway train is in motion, is not an invitation to one to alight from the moving train. England v. Boston & M. R. Co., 153 Mass. 490 (27 N.E. 1); ...