Lang v. Marshalltown Light, Power & Ry. Co.
| Decision Date | 24 June 1914 |
| Docket Number | 29560 |
| Citation | 147 N.W. 917,166 Iowa 548 |
| Parties | JULIA LANG, Appellee, v. MARSHALLTOWN LIGHT, POWER AND RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--HON. CLARENCE NICHOLS, Judge.
ACTION for personal injuries to a passenger in alighting from a street car, charged to have been caused by the negligence of the defendant.
Reversed.
Hasner & Hasner and Binford & Farber, for appellant.
Bradford & Johnson and U. S. Alderman, for appellee.
I.
On August 10, 1910, the plaintiff was a passenger of the defendant on its line of street railway which was being operated in the city of Marshalltown. She had arrived in the city at the station of the Northwestern Railway, having come from her home at Lamoille and took passage on defendant's street car at the railway station. She claims that on entering the car or soon after she told the conductor that she desired to get off at Second street, and that before reaching that point she signaled the conductor, who called the name of the street. She also claims that the car stopped at Second street, upon which she started to alight from it and just as she had placed one foot on the street, holding to a rod or standard at the side of the car, which was an open one, the car started, without warning, throwing her to the brick pavement, and permanently injuring her.
The only ground of negligence charged is in starting the car after it had stopped, without warning, and before she had fully alighted. The injuries which she claims resulted from the alleged negligent act, and without negligence on her part, were in the left half of the body, which includes the left shoulder, left side, and the left hip, left arm, and left limb, and also includes the spinal cord, spinal column, and the nerves radiating therefrom to the left side, and also includes the twisting, turning, and partial dislocation of the neck and head, so that the head is turned to the left, and also includes permanent injury to ligaments, muscles, etc., of the left side of the body, and also includes the left ribs and articulation, and connection thereto with the spinal column, and also includes heart troubles of nervous, arterial, and valvular, and dilation thereof, and also includes permanent injury to the veins and arteries of the left side, and also includes permanent injury to the eyesight of both eyes, and also includes permanent injury to the brain.
The trial resulted in a verdict and judgment for plaintiff for $ 6,000, from which this appeal is taken.
II. The evidence introduced on the part of the plaintiff tended to support her claim that the injuries of which she complained were caused by the car being suddenly started before she had fully alighted from it. On the part of the defendant there was evidence to the effect that as the car approached Second street she saw Olsen's Store, where she wished to go and which was in the block along which the car was then passing, and, saying that that was where she wanted to go, she started to arise, when another passenger cautioned her, and she sat down; that the conductor called Second street, and as the car was stopping, but while yet in motion, she arose, grasped the standard at the side, and stepped off backward, falling to the pavement.
Based upon this proof, the trial court, in its instructions to the jury, in referring to the claim of contributory negligence, stated the rule under the facts as follows:
If the plaintiff, as a matter of fact, attempted to alight from said car before it stopped, and while it was still in motion, then whether the plaintiff in so doing was guilty of negligence causing or contributing proximately to cause her injuries, and which would preclude a recovery herein, would depend whether the plaintiff in so attempting to alight was at the time in the exercise of ordinary care; that is, that degree of care that an ordinarily careful and prudent person would have exercised under the same or similar circumstances. In determining whether the attempt of plaintiff to alight from the car while yet in motion, if she did so attempt, was negligence on her part, the speed of the car at the time, the manner in which she attempted to leave the car, and any other facts and circumstances bearing thereon, so far as shown by the evidence herein, should be considered by the jury.
Error is assigned in the giving of this instruction, upon the ground that the only negligence charged in the petition was in suddenly starting the car after it had stopped; and if, as submitted in the instruction, the accident occurred before the car had stopped, the injury then resulted from causes not charged as negligence on the part of the defendant. It requires no extended citation of authorities to support the rule that in actions based upon negligence recovery can only be had upon proof of some one or more of the negligent acts charged. Manuel v. C., R. I. & P. Ry., 56 Iowa 655, 10 N.W. 237; Carter v. K. C., St. J. & C. B. Ry., 65 Iowa 287, 21 N.W. 607; Volquardsen v. Telephone Co., 148 Iowa 77, 126 N.W. 928.
Counsel for appellee cites Root v. Railway Co., 113 Iowa 675, and Beringer v. Railway Co., 118 Iowa 135, in support of the proposition that, when a street car is stopped to permit a passenger to alight, it is bound to wait a sufficient time to enable the passenger to do so, and that it is negligence to start the car while the passenger is attempting to alight. We do not understand that this rule can be questioned, nor the further one stated in both of the cited cases that it is not negligence, as a matter of law, to attempt to leave a street car which is in motion, although in some cases such may amount to contributory negligence. Under issues framed to support such rules, their application is correct. But they do not reach to the question presented in this record. There is no charge of negligence resulting from acts done before the car had stopped, and the criticized instruction placed before the jury a situation as bearing upon the question of contributory negligence which recognized it as a question to be considered under conditions not charged in the pleading. If the injury occurred before the car had stopped, and not as a result of its being suddenly started after it had stopped, there was then a failure to establish the negligence charged against the defendant; and the act of the plaintiff in alighting from the car before it had stopped, if she did so, was, if negligent, not concurring with any negligence charged, and therefore not contributory negligence, as such term is properly understood.
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