Olson v. Des Moines City Ry. Co.

• Court: Iowa Supreme Court
• Writing for the Court: GAYNOR
• Citation: Olson v. Des Moines City Ry. Co., 186 Iowa 384, 170 N.W. 466 (Iowa 1919)
• Decision Date: 22 January 1919
• Docket Number: No. 32222.,32222.
• Parties: OLSON v. DES MOINES CITY RY. CO.

186 Iowa 384

170 N.W. 466

OLSON

v.DES MOINES CITY RY. CO.

No. 32222.

Supreme Court of Iowa.

Jan. 22, 1919.

Appeal from District Court, Polk County; Thos. J. Guthrie, Judge.

Action to recover damages for personal injury. Opinion states the facts. Verdict and judgment for plaintiff in the court below. Defendant appeals. Affirmed.W. H. McHenry, of Des Moines, for appellant.

J. L. Gillespie and Edwin J. Frisk, both of Des Moines, for appellee.

GAYNOR, J.

This action is to recover for personal injuries.

The record discloses that on the 10th day of December, 1915, the plaintiff boarded a Fair Grounds car at East Fifth and Locust street and rode to East Thirtieth and Walnut street, known on defendant's line as the Fair Grounds Station. After the car had stopped at East Thirtieth street, the plaintiff attempted to alight, and in making this attempt fell and was injured. No question is made as to the fact of her fall, the injury, or the extent of it. The defendant contends that her fall was not due to any culpable negligence on its part, and that it is not liable therefore for the injuries consequent upon such fall.

In her petition plaintiff charged the defendant company with several acts of negligence as the proximate cause of her injury. Upon the trial, however, on motion of the defendant, all grounds of negligence alleged were withdrawn from the consideration of the jury except the following:

“First. In allowing the steps of the street car to become slick and slippery so as to cause one's foot to slip or slide off the step, and in permitting ice to form and accumulate on said car step so as to make said step slippery and slick and unsafe for ordinary use.

Second. That the conductor on said car knew, or should have known, of the plaintiff's advanced age and physical condition, and did not aid or assist, or offer to aid or assist, her in alighting from said car at said place.”

The evidence discloses that plaintiff was about 67 years of age; that some time in October preceding the accident, she was hurt in her right knee, and her knee was a little stiff and weak. She was, however, able to walk without staff or cane, but limped somewhat. On this particular morning she walked about six blocks to reach the point where she took the car.

The morning was cold and the ground was hard. She was accompanied by a Miss Wilson. After she boarded the car she and Miss Wilson took seats in the body of the car. Miss Wilson sat next to the window, and plaintiff on the outside.

The evidence supporting the first proposition is as follows:

Miss Wilson testified that when the car stopped at Thirtieth street, the plaintiff went to the rear door, the door of exit, a little ahead of her; that she saw her on the platform before she started down the steps; that she saw her turn or go back; that she (Miss Wilson) was then putting on her wraps; that as she turned around she saw plaintiff put down her basket; that she was just by the door of exit ready to go down the steps from the rear platform; that the next she saw of the plaintiff she was lying upon the ground.

Plaintiff testifies, touching the manner of her exit, as follows:

“When I started out of the car I set my basket down on the platform. I stepped down with my right foot. I tried to reach the ground with my left foot. I couldn't reach the ground with my left foot. I had hold of the rod with my right hand. My right foot was on the first step, and my left foot trying to reach the ground. I was hanging onto the rod with my hands. I sat down on the step. I had hold of the rod and held fast, but I couldn't reach the ground, so I tried to hold myself and get up, and then I slipped off, and my hands fell loose from their hold.”

She was then asked this question:

“Isn't it true that your right knee gave way and your hold slipped off the rod, and you fell in the street? A. Yes. Q. Your right knee gave way because it was weak? A. I slipped. Q. Did your foot give way or your knee give way? A. No; not the knee. Q. Did your knee go over, then, under the weight of your body when you were on the step? A. No; it slipped on the ice. Yes, sir. It slipped; my foot, that way. Q. The reason you fell then was because of the ice on the steps, wasn't it? A. Yes, sir. Q. That is the only reason you fell? A. I didn't touch the ground, my right foot didn't touch the ground. Q. If it hadn't been for the ice, you wouldn't have slipped and fallen? A. I couldn't hold me fast to the rod. Q. If it hadn't been for the ice, you wouldn't have fallen? A. No. Q. You said a minute ago that the cause of your falling was because your foot slipped on the ice on the step? A. Yes, sir. Q. Just put it this way: It was the ice on the step that caused you to fall, wasn't it? A. Yes, sir. Q. You would not have fallen if it had not been for the ice? A. No. Q. You didn't have any knowledge of the ice on the steps of the car until you started to go down the steps? A. When I went on it in the morning there was, and I knew it would be there when I got out. When I got on the car I saw the ice there then.”

Miss Wilson testified also that she noticed the step was icy and dirty, covered with ice and dirt, but the ice was more noticeable.

As tending to support the second proposition the plaintiff testified:

“I walked from my home to the car on this morning. When I attempted to enter the car the conductor was standing on the rear platform at the point where I entered. I put my knee on the first step of the car. I knew my knee was weak, and I saw the ice on the step. I lay on the platform, and had my hand on the handle, and then I lifted my body up, and Miss Wilson pushed me on.”

More specifically she stated:

“I put my knee on the first step of the car, then I put my left foot where my knee was, laid my hand on the platform. After I got my right knee and my left foot on the step, then I took hold of the handle or rod with the other hand and pulled myself up. I had one hand on the platform, and Miss Wilson pushed me, and then I stepped up. I know the conductor saw me when I got out on the platform to alight from the car. When I got on the car, I took my little basket with me, I put it down on the platform, the conductor was standing, writing on a piece of paper; he was standing on the platform; it was daylight. The conductor did not offer to take my basket. I had my right hand on the handle, and put my right foot on the step and tried to get out and step down. I couldn't reach the ground, so I drew the foot up and said to the conductor, ‘I can't reach the ground,’ but he didn't answer me, so I thought I would try, and I still began to go down. Something slipped under my foot, and then I began to go down, and my hand bag fell out like this, and I went down there. There was ice and frost and mud on the step. That is why my foot slipped out under. The ice was on the top of the iron step. When my foot slipped, my hand slipped from its hold, and I fell. When I reached down to catch the ground, the left foot hanging down to catch the ground, I couldn't reach it, and the other foot slipped, and then my hand, and I rolled down.”

This is the plaintiff's testimony substantially as to how the injury occurred, and the circumstances attending its occurrence.

The conductor testified:

“They (meaning plaintiff and Miss Wilson) were within two or three feet of me when they got on. As I remember it, it was a cold morning and freezing. My eyesight is good. I could see, and did see, all that was going on there. When they were in the car they were seated about the middle. When she got on the car she did not limp; she did not tremble; did not fail for want of strength to step in. I looked at her as I would any ordinary person. Did not notice any weakness about her. She did not ask assistance in getting into the car. There was nothing that I noticed in her manner or conduct as she got on that car that was different from the ordinary person entering a car. I didn't notice Miss Wilson help her on. After she got on the car she went in the ordinary way out to the Fair Grounds Station. I saw Mrs. Olson alight from the car. She got off on the rear platform. She had a little basket in her hand. I took it away from her so she could use her right hand. If I remember right she had a little shopping bag in her left hand. She grabbed the rod with her right hand and stepped down to the step, and just as she was going from the step down, somehow or other, she went down in a heap to the ground and let loose of the rod. I put the basket down and jumped out to her. She got off backwards as we call it, I mean by that she was facing the opposite way from which the car was going. I didn't see her slip. I saw the step after she fell. I found no snow or ice on the step. There was none there. I didn't assist Mrs. Olson in alighting from the car because people as a rule that are able to get on the car are able to get off. There was nothing on the step to prevent her from getting down. I had no knowledge at the time that she needed assistance. I know Mrs. Olson when I see her. I saw an old man get off just ahead of Mrs. Olson. When she came out, I was standing on the inside of the rail on the platform. From the platform you go down to, what we call, a step. There is only one step hanging from the car, and from this she stepped down on the ground.”

[1] It is apparent then that the conductor saw and noticed Mrs. Olson, both when she entered the car and when she left the car. If her story is true, or the jury should believe it to be true, as they well might, the conductor must have seen and known the manner of her entry and the difficulty that attended it, and the manner of her exit and its difficulty, and from this should have known her need of assistance. On this the jury might well find that the conductor was negligent in not rendering her assistance, and that if he had performed this duty the injury would not have happened.

We have set out so much of the evidence for the...