Kliebenstein v. Iowa Ry. & Light Co.

• Decision Date: 09 May 1922
• Docket Number: No. 34139.,34139.
• Citation: 188 N.W. 129,193 Iowa 892
• Court: Iowa Supreme Court
• Parties: KLIEBENSTEIN v. IOWA RY. & LIGHT CO.

193 Iowa 892

188 N.W. 129

KLIEBENSTEIN

v.IOWA RY. & LIGHT CO.

No. 34139.

Supreme Court of Iowa.

May 9, 1922.

Appeal from District Court, Marshall County; B. F. Cummings, Judge.

Action for personal injury alleged to have been caused by the negligence of the defendant. From a verdict and judgment for plaintiff, defendant appeals. Affirmed.John A. Reed, of Cedar Rapids, and E. N. Farber, of Marshalltown, for appellant.

C. H. Van Law, of Marshalltown, and McCoy & McCoy, of Oskaloosa, for appellee.

ARTHUR, J.

The plaintiff was a passenger on one of the cars of the defendant, a street railway company operating a street railway in Marshalltown, Iowa. The car upon which the plaintiff was riding at the time in question was a one-man car, and the motorman, who was also the conductor and in sole charge of the car, stopped the car near the car barn on South Third avenue, in the city of Marshalltown, at which place the street inclines to the south across the tracks of the Great Western Railway Company. This incline is a 2.9 per cent. grade, referred to in the testimony as a steep grade and as the South Third Street hill. When the car stopped, the motorman set the brakes, left the car with the front door open, and went to the waiting room of the car barn, some distance away, to get a book of transfers. At the time he left the car, the gates at the Great Western Railway crossing just ahead of the car were closed and a freight train was passing. Some one in the car complained that it was cold and one Deuell, who was an employee of the street car company, but who had nothing whatever to do with the operation of its cars, went to the door to close it, but, instead of taking hold of the lever by which the door was opened and closed, he grasped the lever that released the brakes and did release them. The motorman saw the car when it first began to move and ran to it, but did not reach it until it had passed the point of danger. As soon as the car started coasting toward the freight train that was passing, the passengers hurried to get off, and the plaintiff, in alighting from the car, turned her ankle, spraining it, and for the injury and damage thus sustained she brought this suit.

The principal matters complained of by the appellant are: (1) That the instructions placed upon the defendant as a passenger carrier a too high degree of care in the protection of its passengers. (2) That the instructions ignore the connection between the plaintiff's injury and the act of Deuell in releasing the brakes of the car, and, in effect, charged the jury that the acts of the motorman in leaving his post of duty was the proximate cause of the injury. (3) That the instructions also charged the jury, in effect, that the acts of the motorman were negligent, as a matter of law.

[1] The sixth instruction, the first paragraph of which pertains to the duty of the defendant in the protection of its passengers, is as follows:

“You are instructed that the defendant company, as a carrier of passengers for hire, owed a duty to its passengers to so manage its car that they would not be exposed to any danger which human foresight and care could apprehend and provide against. In this case, if you should find from a preponderance of the evidence that the defendant's motorman, in charge of said car, left the same on the tracks of said defendant company while the car was occupied by the passengers, one of whom was plaintiff, and so left the said car upon said track upon an incline or grade where the same was liable to or would start should the brakes be loosened by any cause, and that said car when so started would proceed down grade and onto the railway crossing and expose such passengers to danger, and that said motorman went so far from his post of duty that he could not return thereto and control the said car before it reached a place of danger, then and, in the event of your so finding, you are instructed that such acts on the part of the motorman in so leaving the said car, under the circumstances,would constitute negligence on the part of the defendant.”

[2] That a carrier of passengers for hire must exercise more than ordinary diligence in the protection of its passengers is a rule well established. The carrier's duty stops just short of insuring the safety of the passenger, and the common expressions of the law on this subject are that the carrier is bound to protect the passenger as far as human care and foresight will go, and that the carrier is liable for slight negligence. Hutchinson on Carriers (3d Ed.) vol. 2, § 893 et seq.; Kellow, Jr., Adm'r, v. Central Iowa Ry. Co., 68 Iowa, 470, 23 N. W. 740, 27 N. W. 466, 56 Am. Rep. 858;Hutcheis v. Railway Co., 128 Iowa, 279, 103 N. W. 779;Pershing v. C., B. & Q. Ry. Co., 71 Iowa, 561, 32 N. W. 488;Arnett v. Illinois Central Ry. Co., 188 Iowa, 540, 176 N. W. 322; In Raymond v. B., C. R. & N. Ry. Co., 65 Iowa, 152, 21 N. W. 495, we said:

“The defendant complains of an instruction given by the court, to the effect that it was the duty of the defendant, as a common carrier of passengers, to exercise extraordinary care and caution; but it appears to us that the rule of the instruction is well settled,” citing Sales v. Western Stage Co., 4 Iowa, 547.

The portion of the sixth instruction, which relates to the duty of the carrier to its passenger, states the law correctly, and does so in substantially the language in which the rule is stated generally.

[3] The appellant complains of the trial court's treatment of the fact shown in evidence that Deuell, an interloper, and not the motorman or some other employee of the company in charge of its cars, was the person who released the brakes and allowed the car to move toward a place of danger. This complaint underlies all but the first five, the twelfth and...