Root v. Des Moines City Ry. Co.

• Decision Date: 17 October 1900
• Citation: 83 N.W. 904,113 Iowa 675
• Parties: E. J. ROOT v. DES MOINES CITY RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

83 N.W. 904

113 Iowa 675

E. J. ROOT v. DES MOINES CITY RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 17, 1900

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

ACTION for damages. Verdict and judgment for the plaintiff, and the defendant appeals.

Reversed.

Guernsey & Granger for appellant.

Carr & Parker and Read & Read for appellee.

LADD J. GRANGER, C. J., not sitting.

OPINION

LADD, J.

The plaintiff was the only passenger on the defendant's car moving westward on University avenue in Des Moines, and desired to alight at its intersection with Twenty-Seventh street. The motorman had left the car at Twenty-Fourth street, and the conductor was in sole charge. At the alley just before reaching Twenty-Seventh street, she claims to have signalled the conductor, when looking back, by nodding the head, to let her off at the next street, and that he at once moved the levers, and the car began to slow up that when it was crossing the street she went to the rear end, to be ready to get off on reaching the west side, but that it was going too fast for her to do so; that its speed gradually decreased until barely moving, when she descended to the lower step, hesitated a few seconds, and, as it kept "going several revolutions, about the same," then stepped to the ground. She testified: "It seemed as though the car stopped, so that I did not take hold of the handle of the car to steady myself; * * * and, after I had my foot on the ground, instead of stopping it started very suddenly," and she fell, and was seriously injured. This movement appears to have occurred just as her right foot struck the ground, and before her left foot was taken from the step. It may be added that the signal was one customarily recognized by those in charge of defendant's cars, that plaintiff knew the car ordinarily stopped for passengers only at crossings, and that she was unable to say whether the conductor observed her move to the rear end and get off. On the other hand, the conductor admits that he looked back, but denies that plaintiff gave any signal to stop; denies that he began to slow up until he approached the switch 20 feet west of the curb line of Twenty-Seventh street, when he reduced the speed of the car from the rate of five or six miles an hour; that when on the switch he observed a horse hitched 115 feet west of the same line, somewhat frightened, and threw the current of electricity off, and partially set the brake, and that when the car was one-third past the horse the brake was loosened and the current thrown on, but that there was no jerk or sudden movement. He estimates that the speed was not reduced to below three to four miles an hour. One Nelson was standing near by, and estimates the speed about the same, but admits stating to plaintiff's husband, out of court, that the car was barely moving. This witness also testified that the plaintiff had alighted before the speed of the car was increased, that this was gradual, and that it had moved about two feet after she was on the ground, and before the speed increased.

II. We have set out the evidence with particularity because of defendant's contention that it is insufficient to support the charge of negligence. In passing upon this, controverted every issue of fact must necessarily be resolved in favor of the verdict. No question is made but that the company, as a carrier of passengers, was bound to exercise the utmost diligence and foresight consistent with the character of its business, in order to avoid injury to the plaintiff. Railway Co. v. McClellan, 54 Neb. 672 (74 N.W. 1074 69 Am. St. Rep. 736), and note. And it is quite as well established that, when a car stops to enable a passenger to alight, it is bound to wait a sufficient length of time to enable him to do so, and that it is negligence to start while he is attempting to get to the ground, or is in a position which would be rendered perilous by he motion of the car. Railway Co. v. Smith, 90 Ala. 60 (8 So. 86, 24 Am. St. Rep. 761); Railroad Co. v. Cusick, 60 Kan. 590 (57 P. 519, 72 Am. St. Rep. 374). But in the case at bar the car did not stop at the usual stopping place, where the signal required, and it may be that the conductor actually had no knowledge of the plaintiff's intention to get off the car where she did. But was he not charged, as a prudent man, with knowledge that, under the circumstances disclosed, she would attempt to get off and return to the street passed as soon as the car came so nearly to a standstill? That she might reasonably have supposed he was stopping at her request does not admit of doubt, though, as to whether she in fact did, was put in issue by her knowledge of the general rule of stopping at intersections only. Not what the conductor in fact knew, but that, in the exercise of a high degree of care, he was bound to anticipate, is the controlling inquiry. If, in the proper discharge of his duty, he should have observed the effort of the plaintiff to leave the car, and failed to do so, and, because of...