Patterson v. Omaha & C. B. Ry. & Bridge Co.

• Decision Date: 02 February 1894
• Citation: 90 Iowa 247,57 N.W. 880
• Court: Iowa Supreme Court
• Parties: PATTERSON v. OMAHA & C. B. RAILWAY & BRIDGE CO.

90 Iowa 247

57 N.W. 880

PATTERSON

v.OMAHA & C. B. RAILWAY & BRIDGE CO.

Supreme Court of Iowa.

Feb. 2, 1894.

Appeal from district court, Pottawattamie county; A. B. Thornell, Judge.

The defendant company operates a line of street railway on some of the streets in Council Bluffs, Iowa, and in Omaha, Neb. The plaintiff resided in 1890 in Council Bluffs, and was employed as a draughtswoman in an office in Omaha. She traveled to and from her work on defendant's railway. On the 28th day of October, 1890, as she was returning to her home, and was alighting from the car at Fifth avenue, in Council Bluffs, she fell, and was permanently injured, and this action is to recover her damage. Her claim is that the car stopped for her to alight, and was then negligently started, causing her injury. The answer puts in issue the fact of negligence, and the cause was tried to a jury, that returned a verdict for plaintiff, and the defendant appealed.Wright & Baldwin, for appellant.

Donovan & Evans, for appellee.

GRANGER, C. J.

1. There is a claim that the verdict is without support in the evidence. Where defendant's line crossed Fifth avenue is where plaintiff was in the habit of transferring or alighting, at the intersection of Pearl street and Fifth avenue. The car approached Fifth avenue on Pearl street from the north. The custom of the company was to, and its rules required that the car should, cross the avenue before stopping for passengers to alight. This would require the plaintiff to alight on the south side of the avenue. As she claims, the car stopped on the north side, and, as she was alighting, it started suddenly, throwing her to the ground, resulting in her injury. There is no dispute but that plaintiff attempted to alight from the car; that, in so doing, she fell, and was injured; but it is in dispute whether or not the car actually stopped, or merely “slowed down almost to a standstill,” in order to make a switch. The court, under the averments of the petition, held that, to enable plaintiff to recover, she must show that the car actually stopped, and was negligently started, resulting in the injury. The jury specially found that the car did stop before it reached the south side of Fifth avenue, and also that it was not in motion when she attempted to alight. These findings were made under a plain conflict of evidence as to the facts. The plaintiff testified that when the car left Broadway, and turned into Pearl street, she requested the conductor to let her off at the courthouse, and he said, “All right.” She said: “We hadn't quite reached the courthouse when the conductor turned, and called ‘Fifth Avenue,’ and, as he called, the car began to slack up, and we hadn't more than reached the switch when the car stopped. * * * When the conductor called ‘Fifth Avenue,’ I prepared to get off, and, just as the car stopped, I attempted to get off, but I did not more than touch one foot to the ground when the car started, and threw me to the pavement.” She further said: “The car sometimes stopped at the north side of Fifth avenue, and sometimes at the south side of Fifth avenue. * * * The car stopped more times north of Fifth avenue than south. I think a half dozen times would cover all the times I got off on the north side of Fifth avenue.” She also said that it was customary for the cars to stop for her on the north side of Fifth avenue when she requested it. These facts are denied by witnesses for the...