Murray v. Cedar Rapids City Lines

• Decision Date: 05 June 1951
• Docket Number: No. 47863,47863
• Parties: MURRAY v. CEDAR RAPIDS CITY LINES, Inc.
• Court: Iowa Supreme Court

Page 256

48 N.W.2d 256

242 Iowa 794

MURRAY v. CEDAR RAPIDS CITY LINES, Inc.

No. 47863.

Supreme Court of Iowa.

June 5, 1951.

Barnes, Wadsworth, Elderkin & Locher and Thomas H. Pirnie, all of Cedar Rapids, for appellant.

Jordan & Jordan, L. D. Dennis and John R. Mackenzie, all of Cedar Rapids, for appellee.

SMITH, Justice.

The case was tried twice. The first jury disagreed; the second returned a verdict for plaintiff upon which the court entered judgment, overruling defendant's motion for judgment notwithstanding verdict. Defendant has appealed.

The basic facts are not seriously in dispute. Defendant operated a city bus system in Cedar Rapids. On May 16, 1946, at about 10 o'clock P. M. plaintiff concededly became a passenger on one of its buses and sat opposite the rear door. This was at First Avenue and Second Street. He continued on the bus until it reached the point where the injury occurred, on Fourth Avenue where Ninth Street would intersect if extended.

Various errors are assigned and propositions argued but the decision must ultimately turn on the sufficiency of the evidence to go to the jury tending to establish: (1) Plaintiff's continued status as a passenger when injured; and (2) defendant's failure to exercise the required high degree of care for plaintiff's safety as such passenger.

At Third Avenue and Third Street a number of persons boarded the bus including two teen-age boys who were talking in loud voice and using profane and vulgar language. Witnesses say they were so engaged before entering the bus and that they were unsteady on their feet and making clumsy efforts to light cigarettes. According to a woman witness who got on the bus at the same corner where they entered it, they were drinking spiked coke--'that is a coke with whiskey in it'--while still on the sidewalk. She says after they deposited their fare they stood in the way of other passengers entering and when the driver asked them to 'step back, please' they told him to 'go to hell and mind your own business.' When he told them to sit down or get off the bus they profanely demanded their money back. They were free with the epithet, 's___o___b___,' addressed to each other, at least.

This same witness said that although there were women close by, the boys announced 'they were going * * * to keep on drinking and if these G___d d___n people didn't like it they knew what they could do'; also, 'if the bus driver didn't like it he knew what he could do.' When a man passenger tried to quiet them they told him 'Shut your mouth you damned old bastard.'

We are of course viewing the evidence in the light most favorable to plaintiff in considering defendant's demands for directed verdict and for judgment notwithstanding verdict. If there was any substantial evidence to support a verdict for plaintiff any contradictions and conflicts were for the jury to resolve.

According to plaintiff's version, just after the bus, traveling east on Fourth Avenue, passed Eighth Street, and just after the hoodlums insulted the man who tried to calm them down, the driver pulled over to the curb, stopped the bus, opened the front door, asked the passengers to close the doors and keep the boys on the bus, and went out in search of the police.

The man who had just incurred the boys' wrath, tried to follow the departing driver's direction but pulled the wrong lever and opened the back door leaving the front door partly open. Plaintiff stepped quickly out the back door: 'I wanted to get off the bus and not be locked in with two drunks.' While there is some argument on the point the jury could find the boys were still aboard when plaintiff left the driverless bus.

Almost at once other passengers (though not all) also left the bus, including the boys who were the cause of the trouble. There was then some trouble and scuffling on the sidewalk near the front end of the bus, apparently due to the effort of some of the men to restrain the boys pending return of the driver with the police.

Plaintiff denies taking any part in the altercation and there is no evidence he did--only a written statement by one of his witnesses offered on cross-examination for impeachment purposes only, and repudiated in that respect by the witness himself.

Plaintiff testifies one of the boys broke loose during the melee and 'while I had my head turned looking at him I received a blow on the side of the head which buckled my glasses into my eye.' He seems to have been the typical 'innocent bystander' who so frequently gets hurt.

When the bus driver returned (without the police) he caused plaintiff to be returned to the bus and taken to the hospital. There is no controversy over the seriousness of plaintiff's injury or over the amount of the verdict. He lost his eye completely and undoubtedly suffered much pain and was put to much expense and loss of time.

I. Our first proposition concerns plaintiff's claimed status as a passenger when he suffered the injury. Defendant argues that when plaintiff left the bus the relationship of passenger and carrier at once terminated and that defendant no longer owed plaintiff 'the high duty which the law imposes upon common carriers,' citing the opinion in Chesley v. Waterloo, C. F. & N. R. Co., 188 Iowa 1004, 176 N.W. 961, 12 A.L.R. 1366.

There is no indication in the opinion in the Chesley case that plaintiff there left the street car with any intention except of severing the relationship of passenger and carrier. The car was halted momentarily by some congestion of traffic. Plaintiff elected to leave the car and go his way afoot. He was struck by a passing automobile. The charge of negligence against the carrier was in permitting him to alight at a dangerous and unusual stopping place.

Manifestly the cited case is not pertinent here. The jury here could properly find that plaintiff left the bus temporarily only and with no intention of not continuing to his destination, just as did many others of the passengers. It is certain he had not reached his originally intended destination. The bus did not stop on his or any other passenger's signal. It was not even a regular stopping place. The bus driver testifies that when he returned to the bus and loaded plaintiff on to take him to the hospital the passengers (many, if not all) returned to the bus; and that he resumed his route after leaving the hospital and distributed them to their respective destinations.

'A temporary departure * * * from the train or car for any good or reasonable cause, without an intention to abandon transportation, does not terminate the relation.' 13 C.J.S., Carriers, § 566a.

'Whether the passenger alights for his own convenience, from motives of either business or curiosity, or to obtain exercise at any regular stopping place for passengers, is immaterial in this respect provided that he properly regards all the carrier's rules * * *.' 10 Am.Jur., Carriers, § 1012.

Our own decision in Gannon v. Chicago, R. I. & P. Ry. Co., 141 Iowa 37, 40, 117 N.W. 966, announced practically the same doctrine embodied in the foregoing quotations. See also, recent approval of rule in McBroom v. S. E. Greyhound Lines, 29 Tenn.App. 13, 193 S.W.2d 92, 95.

The other cases cited by defendant seem to be as inapplicable here, as is the Chesley case, supra.

In Morris v. Omaha & C. B. St. R. Co., 193 Iowa 616, 187 N.W. 510, plaintiff was injured by a fall in the street as she left the street car at a point designated by her. Directed verdict was upheld. In Fitzgerald v. Des Moines City Ry. Co., 201 Iowa 1302, 207 N.W. 602, it was held to be a jury question whether opening the exit door after a stop on signal constituted an invitation to plaintiff to alight before the car came to a full stop. MacLearn v. Iowa Southern Utilities Co., 212 Iowa 555, 234 N.W. 851, merely upheld a directed verdict where plaintiff's intestate was permitted to alight in the middle (instead of the near side) of a smoothly paved street where she was struck by an automobile. In Moss v. Mason City & C. L. R. Co., 217 Iowa 354, 251 N.W. 627, it was held plaintiff's intestate had not yet become a passenger when killed, though she was approaching for the purpose of becoming one.

None of these decisions cited by defendant, touches the principle involved here. Gradert v. Chicago & N. W. Ry. Co., 109 Iowa 547, 80 N.W. 559 is more nearly in point. It sustains the proposition that if a passenger leaves the car to avoid a threatened danger and is nevertheless injured in so doing, the jury may find he was still a passenger when the injury occurred.

II. Defendant argues that even though a passenger by voluntarily leaving the car at a place not a regular stop may not completely lose his status as a passenger, he nevertheless surrenders it temporarily or, as said in argument, it becomes suspended for the time he is not actually on the vehicle.

Defendant cites 10 C.J. 629 and C.J.S., Carriers § 566b, p. 1076. These texts cite cases to support the general proposition but there are significant qualifications: 'Unless he so leaves the car on the express or implied invitation of the carrier for some necessary purpose incident to the journey, such as for the purpose of going around a wreck * * * and taking another train or car.'

The instant case might well be found by the jury to come within an analogous exception. It could be found the driver temporarily abandoned the bus intending that the passengers remain inside with the doors locked so the offending youths could not escape, while he went for police help to handle the situation. He testifies as much.

Had defendant the right to impose this situation upon its passengers under penalty of losing their status if the...