Mitchell v. Des Moines City Ry. Co.

• Decision Date: 12 April 1913
• Citation: 161 Iowa 100,141 N.W. 43
• Parties: MITCHELL v. DES MOINES CITY RY. CO.
• Court: Iowa Supreme Court

161 Iowa 100

141 N.W. 43

MITCHELL

v.DES MOINES CITY RY. CO.

Supreme Court of Iowa.

April 12, 1913.

Appeal from District Court, Polk County; James P. Hewitt, Judge.

Action to recover damages for personal injury. Affirmed.Guernsey, Parker & Miller, of Des Moines, for appellant.

Thos. A. Cheshire, of Des Moines, for appellee.

GAYNOR, J.

Plaintiff claims that on or about the 21st day of June, 1911, she was a passenger on one of defendant's cars; that the car on which she was riding stopped at Ingersoll avenue and Twenty-Eighth street for plaintiff to alight; that, while she was in the act of alighting, the car was started without any warning to her or signal from any person to start; that she was thrown to the ground, her left ankle severely injured, and the ligaments, muscles, and nerves surrounding the ankle joint were torn, strained, and broken, and her body severely bruised, and she also sustained a severe shock to her nervous system. Plaintiff further states that, when she was five years of age, she received an injury to her right leg; that, as a result of this injury she has ever since been compelled to use crutches; that when she stands her right foot is suspended while so standing or walking; that, at the time she attempted to leave the car, she was using her crutches, and was standing on the rear platform of the car resting on her left foot; that she placed her crutches on the first step down, and, while she was in this position, the car suddenly moved forward and threw her to the ground with great force and violence; that, at the time she was attempting to alight, the conductor on the car was standing close beside her on the rear platform and did not warn her that the car was about to start, and did not assist her to alight, or offer to assist her; that the conductor at the time saw her crippled condition, and was fully aware of the fact that she was so crippled.

Upon the facts so stated, the plaintiff alleges that the defendant was negligent: First. In that the motorman caused the car on which she was riding to start suddenly, after it had stopped for plaintiff to alight, without any signal to start the car, and without any warning to the plaintiff that it would start before she could alight. Second. That the defendant was negligent in that the conductor, knowing her crippled condition, did not aid and assist her in alighting from the car. The defendant interposed a general denial to these charges. Upon the issues so tendered, the cause was tried to a jury and a verdict returned by the jury in favor of the plaintiff. That thereupon the defendant filed a motion for a new trial which, being submitted to the court, was overruled, and from the ruling of the court, upon the motion and from the judgment entered upon the verdict, defendant appeals.

It appears from the evidence in this case that, at the time plaintiff was injured, she was 18 years of age; that, when she was about five years of age, she was knocked down and run over by a party riding a bicycle, from which she received injuries to her right hip and joint, and that in consequence thereof she has since been unable to use her right limb; that during all her life, after the first accident, she was compelled to use crutches in walking and getting about; that, prior to this last injury, she had frequently come on street cars from her home; that she had become quite expert in the use of crutches and got around with apparent ease, went up and down stairs without assistance, and had ridden upon street cars two or three times a week since she was 13 years of age. She testified that she got off and on cars without assistance. She says that she could get on better if the conductor had assisted her. On this point she testified as follows, when asked: “Would the fact that one had hold of your arm, or anything of that kind, retard rather than assist you?” She answered: “No, it would not bother me. Q. Has any one ever tried to do that? A. Yes, lots of them have helped me. Q. When did they ever assist you? A. Well, long before I was hurt the last time. They would assist me by taking me by the arm. This would not have a tendency to pull my arm from the crutch. Q. They didn't ordinarily assist you, did they? A. Well, sometimes they did, and sometimes they didn't. This would be getting on and off the car. I never told any conductor that I could get off better without assistance. After I was 13, I would probably go down two or three times a week, and would go down without assistance. Q. Could you get on and off the cars without assistance? A. Sometimes I would, but not very often without assistance. Q. You don't mean to say that that it was the rule of the conductors to assist you on and off the car? A. They helped me most of the time, simply by catching hold of my arm. I had never asked them to assist me, and never waited for them to give me assistance.” It appears that at this time her home was on Olive avenue. It appears that during the last four or five years she had been accustomed to ride on this line and was familiar with the faces of the conductors who ran on that line. She further testified: “After I became 12 or 13 years of age, I would go out with my father or my mother and get on and off the cars without assistance. They never assisted me unless I asked them to. I used to go out to Ingersoll Park quite often with my mother, and once in a while without any companion.” With respect to what happened at the time of the injury she testified: “I got on this car at Twelfth and Grand. As we approached Twenty-Eighth street and Ingersoll avenue I rang the bell to get off. As the car approached Twenty-Eighth street, I walked to the back end of the car to the inside door and waited until the car stopped. When it stopped, I started to get off. I stepped on the rear platform of the car. There were two steps. When I got my crutches down on the step, the car jerked and I fell. It gave a start like it was starting up. I fell with my ankle under me. My crutches had rubber on the ends. I had used them for about a year. I fell on my left side, struck my left arm, and fell to the north and west.”

The conductor testified: “When she came out of the car, I was on the back platform. I saw her come out from the body of the car, out to the door that leads to the platform. She waited inside of the door for it to stop. She came out of the door after it stopped. I wasn't engaged in doing anything except standing there on the platform. No other duty to perform. I saw her when she came to, and stood at, the door leading to the platform.”

There is no dispute in this case that the plaintiff fell and was injured at the place where she claims she fell and was injured. The only controversy is as to what caused her to fall; she claiming that, as she was about to alight, the car suddenly started or jerked and threw her to the ground; the defendant claiming that the car did not start or jerk, and that, in attempting to get down, she slipped and fell without any culpable act on the part of the defendant for which the defendant could in any way be held liable; and defendants contend that from the very manner of her fall, and that from the position in which she lay after her fall, it was a physical impossibility for her to be thrown where she lay by any forward movement of the car while she was attempting to alight.

The uncontradicted evidence shows that, whatever the cause of her fall, she fell to the north and towards the head of the car (that is, toward the west). It is true, as a physical fact, that one standing upon the platform of a car, when the car makes a sudden start or jerk, will naturally be thrown back and towards the rear of the car, but it must be remembered in this case that the plaintiff was crippled; that she was using crutches; that she had but one useful foot; that she was, at the time, supporting herself upon her crutches, and the jury may well have found that, when the car started or jerked, she would naturally and instinctively brace herself on her right crutch; that the effect of this would be to swing her forward and to the left, and perhaps to the very position in which she was found, and moreover it is claimed the undisputed evidence shows that she had become an expert in the use of crutches; that she had gone up and down stairs unassisted at her home and in public places; that she frequently got on and off cars, such as this, unassisted, and without injury; that at this particular time the ground on which she attempted to alight was level and only a foot or a foot and a half from the lower step; that the platform and step were dry; that her footing was just as secure and safe in getting down these two steps as her footing was, or could be, in attempting to go upstairs at her home or in other places. What, then, was it, at this particular time, that caused her to fall in the violent manner in which the evidence shows she did fall? There is nothing in the evidence to answer, and the jury might have well found that it was due to the forward movement or jerking of the car substantially as she stated it. It is true that her evidence is directly or indirectly contradicted by all the other witnesses; but it is also true that she was in a better position to know and determine, and have impressed upon her mind and memory, the facts as they existed at the time of her fall, and what it was that caused her fall.

[1] It is not for this court to sit in judgment on the credibility of the witnesses or the weight to be given to their testimony. That is the peculiar province of the jury. They are the sole judges of the credibility of the witnesses and the weight to be given to their testimony; and where there is evidence, more than a scintilla, to sustain the finding of the jury, this court, in the absence of any showing of prejudice or passion on the part of the jury, must accept their finding as conclusive upon the facts.

[2] So we find that the court did not...