Meyers v. Keokuk Elec. Co., 32049.

• Decision Date: 11 January 1921
• Docket Number: No. 32049.,32049.
• Citation: 180 N.W. 733,190 Iowa 693
• Parties: MEYERS v. KEOKUK ELECTRIC CO.
• Court: Iowa Supreme Court

190 Iowa 693

180 N.W. 733

MEYERS

v.KEOKUK ELECTRIC CO.

No. 32049.

Supreme Court of Iowa.

Jan. 11, 1921.

Appeal from District Court, Lee County; Henry Bank, Judge.

Action at law to recover damages for personal injury. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion. Affirmed.O'Harras, Wood & Walker, of Hamilton, for appellant.

F. M. Ballinger and W. G. Blood, both of Keokuk, for appellee.

WEAVER, J.

The defendant owns and operates an interurban electric railway from the city of Keokuk, Iowa, to the cities of Hamilton and Warsaw in the state of Illinois, and is a common carrier of passengers between the places named. The plaintiff is a colored man, living at Keokuk. On January 16, 1916, plaintiff was in Warsaw, desiring and intending to return to his home on one of defendant's cars leaving that city about midnight. The weather was very cold, the mercury registering from 10 to 12 degrees below zero, with a strong northwest wind blowing. When the car was opened up for receipt of passengers, plaintiff entered and took a seat. He had been seated for a time, when the conductor came to the door and called him out and told him he must leave the car. What was said between them is the subject of dispute, but it is conceded that the conductor peremptorily ordered him to quit the car. Plaintiff swears that he remonstrated and asked the reason for his expulsion, but received no answer except a threat to “throw him out.” He further says he informed the conductor of his necessity to be in Keokuk in the morning, of his inability to find entertainment in Warsaw, and called attention to the exceedingly inclement state of the weather, but without avail. The conductor denies much of the alleged conversation, and says that plaintiff, while complaining at his expulsion and asking the reason therefor, left the car without offering any physical resistance. It is admitted that when ordered out he was sitting quietly in his seat, and had created no disturbance. After plaintiff had been expelled and the car started, plaintiff climbed on the bumper, and clinging there rode the five miles to Hamilton, where he got off and walked the rest of the distance to his home, crossing the river on the bridge. At the end of the trip his hands, feet, ears, and nose were frozen; the hands especially being in very bad condition. A physician was called to attend him early in the morning. He testifies:

“I found his hands very badly swollen, blisters on his hands probably half an inch high, hands very much swollen and painful, the ears were frosted, feet frosted, but hands in worse condition. I treated him about six weeks.”

Plaintiff testifies to having suffered great pain from the injuries so received, to being rendered sleepless for a period of 28 hours, and being unable to return to work for four months, and he still suffers a resulting numbness in his hands and from an increased susceptibility to cold in the parts which were frozen. He charges that his expulsion from the car was wrongful, and that by reason thereof and without fault on his part he was made to sustain the injuries described, and he demands a recovery of damages therefor.

By way of answer the defendant admits the expulsion of plaintiff from the car, but justifies the act by the statement that plaintiff was intoxicated to such an extent as to render him an unsafe person to be accepted as a passenger on the car, and in such condition that his presence in the car would have been obnoxious to passengers. It is further alleged that after his ejectment from the car plaintiff wrongfully climbed upon the bumper of the car, and rode thereon from Warsaw to Hamilton, and that while thus trespassing and exposing himself to the severe cold he suffered the alleged injuries without fault on part of defendant. The issues were tried to a jury, and verdict returned for plaintiff for $1,000. From that judgment defendant appeals.

[1] 1. The assignments of error are entirely too numerous and indulge in too much repetition to permit us to follow them in detail, but we shall try under a few general heads to discuss and pass upon the controlling propositions in the case. We first inquire concerning the sufficiency of the evidence to sustain the verdict. From the testimony the jury could properly find that plaintiff entered defendant's car at Warsaw to be carried to Keokuk; that he was ready, able, and willing to pay his fare; that he had taken his seat quietly, and was conducting himself with proper decorum, when just as the car was starting the conductor called him to the door, and told him that he would not be permitted to ride and must get out, and although plaintiff civilly requested to know why he was being ejected, no explanation was given and the demand upon him to go out was repeated; that he yielded to the demand peaceably; that the hour was about midnight, an hour when business places are ordinarily closed, and the weather was bitterly cold; that the car was the last one going in that direction before morning and that the defendant's waiting room was locked as the car departed. The evidence would also support a finding that plaintiff was not intoxicated and not disorderly and not guilty of any offensive conduct justifying the conductor in expelling him from the car. Assuming the existence of these facts to have been found by the jury, plaintiff having entered the car for the legitimate purpose of being transported to his home, and being ready and willing to pay his fare, became clothed with the rights and privileges of a passenger in the vehicle of the common carrier, and could not be lawfully ejected or cast out at the whim or caprice of the conductor or other servant of the company without good cause.

In support of the defense the conductor testifies that on his arrival at Warsaw on the evening in question he went into the waiting room in the station to register, and while there he saw plaintiff in the room, and noticed him taking a drink from a bottle; or, to use the witness' own phrase, “When I went in, he had the bottle up to his mouth, and took a good healthy swallow.” The time between this incident and the occurrence in the car does not appear. The plaintiff denies having drank anything while in Warsaw except a glass of beer, and a person who says he accompanied plaintiff during his stay in Warsaw and was with him in the waiting room corroborates the plaintiff's story.

Other witnesses for the defendant say they smelled whisky on plaintiff's breath, and one or two of them say he staggered in walking down the aisle of the car. The conductor's testimony on this point is not of very positive character. Being asked to state whether in his opinion plaintiff was intoxicated, his reply was:

“I should say he was under the influence of liquor; when he passed by me within four or five inches I could smell his breath.”

He admits plaintiff was peaceable and orderly; does not pretend that he then accused plaintiff of intoxication or of any other offense or fault, but simply ordered him out of the car and told him he could not ride. The car was not crowded or filled, having only about a half dozen passengers. Plaintiff admits he brought home with him a bottle of whisky, but denies that he sampled its contents, and produces a witness who corroborates him in saying that...