Hutcheis v. Cedar Rapids & M. C. Ry. Co.

• Decision Date: 07 June 1905
• Court: Iowa Supreme Court
• Parties: HUTCHEIS v. CEDAR RAPIDS & M. C. RY. CO.

128 Iowa 279

103 N.W. 779

HUTCHEIS

v.CEDAR RAPIDS & M. C. RY. CO.

Supreme Court of Iowa.

June 7, 1905.

Appeal from Superior Court of Cedar Rapids; James H. Rothrock, Judge.

Action to recover damages for personal injuries alleged to have resulted from falling or being thrown to the pavement in attempting to alight from a street car operated by the defendant company. Verdict and judgment for plaintiff for $2,000. Defendant appeals. Affirmed.Chas. A. Clark & Son and Wm. G. Clark, for appellant.

Rickel, Crocker & Tourtellot, for appellee.

McCLAIN, J.

Between 9:30 and 10 o'clock p. m., plaintiff, together with her daughter and son-in-law, was a passenger on one of the open or summer cars of defendant, running from the eastern part of the city of Cedar Rapids along First avenue westward, across the bridge over the Cedar river to the western part of the city. The cars of this kind were provided with a step on each side, extending the full length of the car, by means of which the passengers entered and left the seats, which extended crosswise the full width of the car. For the purpose of enabling the car to cross the bridge occupied by double tracks of the defendant company, the step on the side of the car from which passengers should properly leave the car was so constructed that while crossing the bridge it could be folded up against the side of the car, so as not to strike the trestlework of the bridge. These cars are also provided with a bar or hand rail that is let down on the side of the car next to the trestlework of the bridge, so as to prevent passengers leaning out and coming in contact with the bridge. This bar is let down to about the middle of the car while it is crossing the bridge, and is immediately raised after the bridge is crossed. When the car on which plaintiff was riding reached the west end of the bridge, the bar was raised by the employés, and the car was stopped at the first street crossing west; and plaintiff, who was sitting on the right hand side of the car, attempted to alight, but fell to the pavement, as it is alleged, because the step, which had been folded up while the car was crossing the bridge, had not yet been let down so that it could be used by plaintiff in alighting. There was evidence tending to show the state of facts here described, and there is no question as to the sufficiency of the evidence to establish the negligence of the defendant in not having the step in proper position to enable the passengers to alight with safety, nor as to the evidence showing freedom from contributory negligence on the part of plaintiff. The verdict of the jury is conclusive as to defendant's liability, unless it may be for errors of law claimed by appellant to have been committed by the court.

1. Plaintiff's witnesses were allowed, over defendant's objection, to testify that after plaintiff fell, she exclaimed, “Yes; let the step down after I fall!” this declaration being relevant to similar evidence tending to show that the step was let down after plaintiff fell, and not, as it should have been, at the time when the bar was raised, after the car left the bridge, and before it stopped at the street crossing. The objection to the admission of proof of this declaration is that it could not be shown as a part of the res gestæ. Under recent decisions of this court, proof of the declaration was admissible. It was made immediately after the accident, with reference to the cause of the fall, without opportunity for premeditation. Without elaboration, it is sufficient to refer to Rothrock v. Cedar Rapids (Iowa) 103 N. W. 475;Alsever v. Minneapolis & St. L. R. Co., 115 Iowa, 338, 88 N. W. 841, 56 L. R. A. 748;Keyes v. Cedar Falls, 107 Iowa, 510, 78 N. W. 227.

2. The court instructed the jury that: “The defendant is what is known as a common carrier of passengers, and it is defendant's duty, by itself and its employés, to use extraordinary care and precaution to protect its passengers from injury. Therefore, in determining whether the defendant, by its employés, was guilty of negligence which caused the accident to the plaintiff, you should hold it to the exercise of extraordinary care and caution to prevent injury to her. But in determining whether the plaintiff was guilty of negligence which contributed to the accident, you should hold her only to the exercise of ordinary care and caution.” In the next instruction the court told the jury that: “If you find from a preponderance of the evidence that the plaintiff was a passenger on one of defendant's cars, and that she attempted to alight therefrom, but that by reason of the negligence of defendant's employés, or one of them, the step along the side of the car had not been let down so that she could step upon the same, and that, by reason of said step not being so let down, she fell to the pavement and was injured,” and that she was not guilty of contributory negligence, then their verdict should be for the plaintiff; otherwise for the defendant. It is now contended for appellant that, while the last instruction quoted was correct, the first was erroneous, in requiring of defendant's employés extraordinary care and caution, and that the two instructions are inconsistent. Counsel do not claim that the carrier of passengers is not bound to...