Mathis v. Des Moines City Railway Co.
| Decision Date | 13 November 1923 |
| Docket Number | 35288 |
| Citation | 195 N.W. 620,196 Iowa 1028 |
| Parties | EMMA MATHIS, Appellee. v. DES MOINES CITY RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--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, for appellant.
Mulvaney & Mulvaney and C. C. Putnam, 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; that, before she alighted therefrom, and while she was 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. 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. Omaha & C. B. St. R. Co., 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 that 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, as follows: 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, 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.
2. Instruction No. 5 should be read in connection with Nos. 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 by the fact that the verdict necessarily found that the defendant had been negligent. Appellee cites on this point Worez v. Des Moines City R. Co., 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 that 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, submits 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. 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 permanent injuries, if any, in so far as they affect her earning capacity, and as an element of physical and mental pain and suffering. It is thought by appellant that there is no evidence of permanent injuries. We do not so read the record. Plaintiff was about 54 years of...
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