Monaghan v. Equitable Life Ins. Co. of Iowa

• Decision Date: 28 September 1918
• Docket Number: 30475
• Citation: 168 N.W. 892,184 Iowa 352
• Parties: J. F. MONAGHAN, Administrator, Appellant, v. EQUITABLE LIFE INSURANCE COMPANY OF IOWA, Appellee
• Court: Iowa Supreme Court

168 N.W. 892

184 Iowa 352

J. F. MONAGHAN, Administrator, Appellant, v. EQUITABLE LIFE INSURANCE COMPANY OF IOWA, Appellee

No. 30475

Supreme Court of Iowa, Des Moines

September 28, 1918

Appeal from Polk District Court.--CHARLES A. DUDLEY, Judge.

THE decedent rightfully made use of a passenger elevator maintained and operated by the defendant in its building. She fell, in some manner, and was found to be dead. A verdict was directed for the defendant, and plaintiff appeals.

Affirmed.

Parsons & Mills and Wilkinson & Wilkinson, for appellant.

Carr Carr & Evans, for appellee.

SALINGER J. LADD, GAYNOR, and STEVENS, JJ., concur. PRESTON, C. J., and WEAVER, J., dissent.

OPINION

SALINGER, J.

I.

On the authority of Cubbage v. Youngerman, 155 Iowa 39, 134 N.W. 1074, a case which seems to be fully in accord with authority generally, the trial court held with the appellant that one who operates a passenger elevator in a building to which the public is invited, which elevator the public uses on such invitation, is held to the same measure of care that is required of a public carrier of passengers: that is, the highest degree of skill and foresight consistent with the efficient use and operation of the means of conveyance. The court followed this to its logical end, by holding that, an accident being shown, and that an injury had happened, it was for the defendant to explain. Notwithstanding this, a verdict was directed against the appellant. It seems to have been done on the theory that conclusive explanation had been made. In ruling on the motion to direct, the judge said that such explanation was made because it was shown that the elevator was operating in its usual way, and was being handled by a careful operator; that there is no evidence that, when the speed was changed, as the elevator progressed upward and it slackened, with a view of halting at the fourth floor, which was the destination of the decedent, there was any motion except the regular, uniform, and habitual motion of the elevator; that it appears there was no jerking, no disturbance, and nothing to cause any passenger upon the elevator any inconvenience, or to put such passenger in any jeopardy. The judge declared it was very clear there could be no negligence arising from operation. He proceeds to say that this reduces the matter to the question of law whether the evidence would suffice to sustain a verdict, if one should be returned for the plaintiff. He states the evidence shows the elevator is of the latest and most approved pattern, and made by one of the leading, if not the leading, manufacturers of elevators in the country; that it is not shown it would be practicable now to fix the door on the outside in such way that there would be no space between the floor of the cage and such door, and so prevent a person falling forward, from having his face drawn therein. The conclusion was "that the presumption which arises from the accident and the injury has been overcome, so that, if there was any negligence to prove, it was upon the plaintiff to make proof of it."

Less than the trial judge recites will sustain his ruling. The pleadings make the case for the plaintiff a very narrow one. This is so because the following concession was made by the plaintiff:

"I do not rely on that second count: My whole reliance is upon the first count of the petition; and upon that I desire to stand."

The first count of the petition, after certain words were stricken out therefrom, on the motion of the plaintiff, is as follows: That, while riding as a passenger in the south elevator, or cage, maintained by the defendant, and while decedent was on her way to the fourth floor of defendant's building, as a passenger in said elevator, and while in the observance of due care on her part, "she was thrown to the floor of the elevator in such a manner as to crush her head instantly, thereby causing her instant death." It is alleged that "said negligence" caused the injury complained of. The only thing to which "said negligence" can or does refer is that decedent "was thrown to the floor of the elevator." This must be construed to charge that she was thrown by the condition or the action of the car; for in no other sense would it be a charge of negligence for which defendant is responsible. So it is manifest that a verdict was rightly directed against the appellant, unless there be some evidence from which a jury might legitimately find that the head of decedent was crushed because some negligence of the defendant caused her to be thrown to the floor of the elevator. Under the eliminations made by plaintiff, the controlling question is not, as the trial judge seemed to think, whether defendant has overcome a presumption that it was negligent, but is whether any such presumption was ever raised.

1-a

The cases cited establish that, if the defendant's elevator was in such condition or so operated as that it might have thrown decedent while a passenger in it, a presumption will be raised that she was thrown because of negligence of defendant. But in all of them there was evidence of such condition or such operation, or that something happened which would not ordinarily occur when machinery was in proper condition, or the elevator properly operated. In Railroad Co. v. Pollard, 22 Wall. (U.S.) 341, 22 L.Ed. 877, a jerk adequate to produce the injury suffered was shown. In New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40, 43 N.E. 809, a sudden starting of the train was disclosed by the evidence. In Goodsell v. Taylor, 41 Minn. 207 (42 N.W. 873), breaking or giving way of the elevator appeared. In Treadwell v. Whittier, 80 Cal. 574, 22 P. 266, and Griffen v. Manice, 166 N.Y. 188 (59 N.E. 925), there was evidence that the elevator fell because of breaking or defects in construction or machinery. In Hartford Dep. Co. v. Sollitt, 172 Ill. 222 (50 N.E. 178), and Ellis v. Waldron, 19 R.I. 369 (33 A. 869), the falling of the elevator was held to raise a presumption that same was faultily constructed, or out of repair. In Springer v. Schultz, 105 Ill.App. 544, the elevator fell. In Fox v. Philadelphia, 208 Pa. 127 (57 A. 356), the elevator suddenly started down, as the injured person was about to enter it at the invitation of the operator, and it was held:

"The fact of the falling of the elevator is evidence tending to show want of care in its management."

In both Fitch v. Mason City & C. L. Tr. Co., 124 Iowa 665, 668, 100 N.W. 618, and Dieckmann v. Chicago & N.W. R. Co., 145 Iowa 250, 121 N.W. 676, there was evidence from which an adequate cause for the injury suffered could reasonably be inferred; and so of Dorn v. Chicago, R. I. & P. R. Co., 154 Iowa 140, 134 N.W. 855, Larkin v. Chicago & G. W. R. Co., 118 Iowa 652, 92 N.W. 891, Pershing v. Chicago, B. & Q. R. Co., 71 Iowa 561, 566, 32 N.W. 488, Smith v. St. Paul City R. Co., 32 Minn. 1 (18 N.W. 827), and Munsey v. Webb, 231 U.S. 150 (34 S.Ct. 44, 58 L.Ed. 162). It is proper summing up of the effect of these and like cases that, if there be evidence of a cause adequate to produce the injury, it will be presumed that the injury was thereby caused. But that certain evidence will raise a presumption of negligence does not in the least tend to establish that there is such evidence. And presumption warranted by the existence of certain facts is no evidence of the existence of such facts. One may not beg the question of whether there was an adequate cause, by pointing out the consequences if there was evidence of such adequate cause. See Eisentrager v. Great Northern R. Co., 178 Iowa 713, at 722, 160 N.W. 311. Before we may reach consideration of what shall be presumed if there be any evidence that plaintiff suffered injury from being thrown, we must determine whether there is any evidence that she was thrown. At this point, the question resolves itself into whether plaintiff has more than that decedent fell over, and was found to be dead; and whether, if that be all, there is any presumption of negligence to overcome. Take a case where, as here, the highest care is due: that of a passenger on a train. Will anyone claim that, upon proof that decedent was a passenger, fell from her seat, and proved to be dead, the carrier would be called upon to prove it was not negligent? Would not all agree that there was no such duty, because there was no evidence of negligence? That the carrier must absolve itself when something is shown by the plaintiff that raises an inference that defendant was negligent, is indubitable. But that does not change there is no such duty; and plaintiff fails, if nothing appear to raise a presumption of negligence. This plaintiff adduced absolutely nothing, beyond showing that decedent was a passenger, that she fell over, and was dead. We think that this constitutes a failure of proof, and that there is no presumption of negligence to rebut. There must be something more than proof that plaintiff was injured. Fitch v. Mason City & C. L. Tr. Co., 124 Iowa 665, 668, 100 N.W. 618. In that case, it is said:

"Of course, mere proof of injury, without showing a collision, derailment, or other cause or circumstance connected with the operation or equipment of the road, does not make out a prima-facie case of negligence. In other words, from the mere fact that plaintiff was found along the side of the track with his leg broken, no presumption of negligence arises."

It is added that rebutting the presumption is required only where a presumption arises, if at all, "from the cause of the injury which was the accident referred to by the court in this case, and from the circumstances attending it. When these are so unusual and of such a nature that the accident could not well have happened without the defendant being...