Mathis v. Des Moines City Ry. Co.
| Decision Date | 13 November 1923 |
| Docket Number | No. 35288.,35288. |
| Citation | 196 Iowa 1028,195 N.W. 620 |
| Parties | MATHIS v. DES MOINES CITY RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Joseph E. Meyer, Judge.
Action for damages. Verdict and judgment for plaintiff for $4,000. Defendant appeals. Affirmed.W. H. McHenry and Corwin R. Bennett, both of Des Moines, for appellant.
Mulvaney & Mulvaney and C. C. Putnam, all of Des Moines, for appellee.
Plaintiff alleged that one of defendant's street cars was started while she was in the act of alighting therefrom, and that she was injured. Plaintiff's claim is, and evidence introduced in her behalf tends to establish the fact, that she was a passenger on one of defendant's cars; that she gave the signal for the car to stop, and that before she alighted therefrom, and while in the act of doing so, the car without any warning started forward, the motorman applied the electric current, and the car lunged suddenly and quickly forward, throwing plaintiff with great force and violence against the pavement below; that she was in good health prior to the injury, and was engaged in employment from which she earned $20 a week; that since the injury she has been unable to perform her labors as before, and that her injuries are permanent.
Defendant's evidence tends to show that plaintiff had alighted from the car and was safely on the pavement before the car was started, and that after she had taken two or three steps after alighting she fell on the pavement.
The sufficiency of the evidence is challenged. Without reviewing the testimony, we are of opinion that the case was clearly one for the jury.
Some of the assignments of error are quite general and too indefinite. Others are not referred to in the brief points or argument. The most serious complaint is in regard to the instructions.
[1][2] 1. Complaint is made of the refusal by the trial court to give an offered instruction to the effect that the relation of carrier and passenger between plaintiff and defendant continued only to the time of the leaving of the car by plaintiff. Appellant cites Morris v. Street Railway, 193 Iowa, 616, 187 N. W. 510. The argument is that the court did not instruct the jury as to the time when the relation of passenger and carrier terminated. It was said in the Morris Case that the duty of a street railway company to exercise care for the safety of a passenger continues only while the relation of passenger and carrier exists. Sometimes that is a question of fact. It is not always safe practice for the trial court to adopt, in an instruction, the language used in the discussion of a case in an opinion. It is said by appellant that the relation of passenger and carrier terminated when the plaintiff entered upon the highway. This is what the trial court told the jury. While the court did not, in its instructions, use the exact language contained in the offered instruction, still we think the thought is fully and properly covered by the instructions given. The instructions were in harmony with the theory of the parties. The instructions given read, in substance: After defining the duty of defendant as a common carrier of passengers for hire, the court instructed on the defendant's theory of the case that if the jury should find from the evidence that the car had stopped to permit plaintiff to alight, and that plaintiff had alighted or had a reasonable time to alight therefrom and did step from the car onto the pavement, and, after having alighted from said car and being free therefrom, she fell to the pavement and sustained her injuries, the defendant would not be liable. The converse of the proposition was given, that if the jury should find as contended by plaintiff, and that defendant, through its agents and employees, was negligent, as instructed, and that such negligence was the proximate cause of the injuries, then the jury should find for the plaintiff. We think it is clear that in view of the instructions given the jury could not misunderstand the nature of the defendant's rights. We think there was no error in refusing the instruction asked.
[3] 2. Instruction No. 5 should be read in connection with 7 and 8. The court did not, as contended by appellant, apply the terms ordinary care and contributory negligence with reference to the duty owed to the plaintiff, but explicitly instructed the jury as to what facts would constitute negligence on the part of the defendant. It is contended by appellee that appellant is precluded from complaining of the instruction from the fact that the verdict necessarily found that the defendant had been negligent. Appellee cites on this point, Worez v. Des Moines City Railway, 175 Iowa, 1, 24, 156 N. W. 867.
3. It is thought by appellant that instruction No. 10 is confusing, and placed the burden of proof on the defendant to establish certain facts before defendant would be entitled to a verdict. We think the instruction is not susceptible of such construction. Appellant seems to concede that the instruction is correct as an abstract proposition. This instruction, together with the preceding one, submit defendant's theory of the case and its defense. Taken together, the instructions fairly and correctly state the law as to the defendant's claims.
[4] 4. Instruction No. 11 is on the subject of the measure of damages. Different elements are recited, among them that the jury might consider plaintiff's...
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