Heinze v. Interurban Ry. Co.

• Citation: 114 N.W. 534
• Parties: HEINZE v. INTERURBAN RY. CO.
• Decision Date: 15 January 1908
• Court: United States State Supreme Court of Iowa

114 N.W. 534

HEINZE

v.INTERURBAN RY. CO.^a1

Supreme Court of Iowa.

Jan. 15, 1908.

Appeal from District Court, Polk County; Wm. H. McHenry, Judge.

Action to recover damages for personal injuries received by plaintiff in connection with his transportation as a passenger on an electric car of the defendant company. At the conclusion of plaintiff's evidence, defendant's motion for a directed verdict in its favor was sustained, and, from a judgment on such verdict, plaintiff appeals. Affirmed.Hume & Hamilton, for appellant.

N. T. Guernsey and Carr, Hewitt, Parker & Wright, for appellee.

McCLAIN, J.

Just prior to receiving the injuries complained of, plaintiff was a passenger on a car of the defendant company going eastward on Walnut street, in the city of Des Moines. He advised the conductor of his desire to alight at Sixteenth street, and, as the car approached that street, he went to the vestibule at the rear end of the car, and, with two other persons, stood on the steps of the car platform, holding by one hand to the hand rail attached to the outside of the car. The motorman slackened the speed of the car at a switch which was about 200 feet west of the west line of Sixteenth street, and, after it had passed the switch, again turned on the power, causing the car to accelerate its speed with a jerk, as a result of which the plaintiff and one of the two other persons standing on the step were precipitated to the street so as to receive some physical injuries. The extent of plaintiff's injury is not material in the present disposition of the case. Plaintiff's destination was the crossing at the east side of Sixteenth street, where there was a sign indicating that such crossing was a “station” of the defendant line. There is no evidence that the car was so operated that it was not the intention of the motorman to stop at the proper crossing, nor is there any evidence of plaintiff's intention or attempt to alight until such crossing should be reached.

It is immaterial whether this action is in form one for breach of contract of safe carriage or one in which recovery is sought on the ground of defendant's negligence. There was no breach of the contract to carry, unless there was some fault on the part of the employés of defendant in providing plaintiff with safe transportation, and, if there was such fault, it constituted negligence, so that the case may properly be determined by ascertaining whether the employés were negligent in the operation of the car with reference to plaintiff's safety causing injury to him. It is conceded, of course, that the defendant owed the plaintiff very great care with reference to his safety, and that, if there was evidence tending to show negligence of defendant's employés in any respect contributing to plaintiff's injury, the case should have gone to the jury, unless there was conclusive evidence of negligence on plaintiff's part contributing to such injury. Many cases are called to our attention in which it has been held that to put a car in motion without reasonable warning or other precaution to avoid injury to a passenger in the act of alighting constitutes negligence. Hopkins v. Chicago, M. & P. R. Co., 128 Wis. 403, 107 N. W. 330;Paul v. Salt Lake City R. Co., 30 Utah, 41, 83 Pac. 563;Clark v. Traction Co., 138 N. C. 77, 50 S. E. 518, 107 Am. St. Rep. 526;Little Rock Traction, etc., Co. v. Klimbo, 75 Ark. 211, 87 S. W. 121;Cohen v. West Chicago Street R. Co., 60 Fed. 698, 9 C. C. A. 223;Roberts v. Johnson, 58 N. Y. 613;Cody v. Market Street R. Co., 148 Cal. 90, 82 Pac. 666. It has likewise been held that, if with reason to know that a passenger is intending to alight the car is slowed down in speed so that the passenger in the exercise of reasonable care attempts to alight therefrom, a sudden starting forward of the car so as to cause injury to the passenger thus attempting to alight is negligence, although the employés operating the car did not intend to stop for the purpose of allowing the passenger to alight at that place. Root v. Des Moines City R. Co., 113 Iowa, 675, 83 N. W. 904;Patterson v. Omaha, C. B. R. & B. Co., 90 Iowa, 247, 57 N. W. 880;Griffin v. Pacific Electric R. Co., 1 Cal. App. 678...