Rubinson v. Des Moines City Ry. Co.

• Decision Date: 13 May 1921
• Docket Number: No. 33803.,33803.
• Citation: 182 N.W. 865,191 Iowa 692
• Parties: RUBINSON v. DES MOINES CITY RY. CO. ET AL.
• Court: Iowa Supreme Court

191 Iowa 692

182 N.W. 865

RUBINSON

v.DES MOINES CITY RY. CO. ET AL.

No. 33803.

Supreme Court of Iowa.

May 13, 1921.

Appeal from District Court, Polk County; George A. Wilson, Judge.

Action to recover damages for personal injury claimed to have been received by plaintiff while attempting to board a street car. The jury returned a verdict in favor of plaintiff for $1. On motion of plaintiff the court set aside the verdict and granted a new trial on the ground that the damages were inadequate. From the order sustaining plaintiff's motion for a new trial, defendants appeal. Reversed and remanded.W. H. McHenry and Corwin R. Bennett, both of Des Moines, for appellants.

Lappen & Carlson, of Des Moines, for appellee.

ARTHUR, J.

The scene of the claimed accident was at East Twenty-Fourth and Murry streets in the city of Des Moines. There is a sharp conflict in the testimony as to what occurred at this place. It is undisputed that the car was going east to the end of the line, two blocks further east, where it turns around and comes back west toward the downtown district of the city; that plaintiff signaled the car to stop so she and two ladies with her, Mrs. S. Kramer and Mrs. J. C. Hurwitz, could board the car; that the car stopped and the door was opened. Here dispute in the evidence occurs. Plaintiff's version is that she started to go onto the car and took hold of a bar which was on the outside of the car, and put her left foot on the step, and before she had time to bring her right foot onto the step the conductor rang the bell and the car started, and he closed the door, and her left foot was caught in the step, so that the door could not be closed because her foot and leg were caught in it, and the conductor jerked the door open, and she fell off the car, that she had hold of the bar with one hand, and in the other hand she held a basket, and her right leg was hanging, and that the conductor was trying to close the door, and that when the gates were released she fell to the ground on her back.

Appellee and the two women who were with her testified that plaintiff stepped on the step of the car, and that then the conductor gave the signal and the car started, with appellee standing with her left foot on the step and her right foot hanging, and her left hand holding to a perpendicular rod, and that in this situation appellee rode about six feet and fell off.

The conductor and motorman and other witnesses testified that plaintiff and her companions signaled the car to stop, and the car was stopped, and the conductor opened the door and asked plaintiff and her companions if they were going to town, and one of them answered that they were. The car being then bound away from town, the conductor gave the motorman the signal to start the car, having in mind to pick them up after the car had gone out to Twenty-Sixth street and turned around and would be going back toward town. The conductor and other witnesses testified that appellee had not attempted to enter the car, had not stepped upon the step of the car at the time the signal to start the car was given, but that after the conductor signaled to the motorman to start on east the plaintiff stepped onto the step of the car and rode a few feet and stepped off and did not fall, and that after the car had gone out to the end of the line, two blocks, and turned around and come back, appellee and her companions got on and rode down town and transferred to another car; that while she was riding down town she told the conductor that he had nearly killed her.

Plaintiff claims that she was injured by being thrown off the car step and falling on a basket which she was carrying which contained some fruit jars. Plaintiff claims that before the accident she was a well woman, and not ailing in any way, and had never had any pains before, and that all the sickness she ever had was the flu in the fall of 1918, and sickness incident to the birth of her children; that she never had any heart trouble before; that because of the accident her foot was swollen, and the swelling went to her knee; that the swelling in her leg lasted about three days; that after the fall she suffered from pain everywhere, through her back, stomach, and gall; that the pains were very sharp; that the pains seemed to come to her heart from her stomach; that the pains were so severe that she could not be up at times and had to go to bed; that she had not been able to do any part of her housework since the accident.

Mrs. Kramer and Mrs. Hurwitz were witnesses for the plaintiff, and substantially corroborated appellee's story of the way the accident occurred.

Dr. Wells, doctor for the company, went to plaintiff's home and examined her soon after her arrival. He asked plaintiff what had happened, if she had fallen. Mrs. Kramer answered that Mrs. Rubinson had not fallen, but she had just swung around and she thought had struck the side of the car. Dr. Wells testified that he found a chronic disease of the heart; that the heart was much enlarged, and had murmurs in the valves; that the enlargement was of such a degree that it could not have been of recent origin.

Although plaintiff had testified that she had never been sick except with the flu in November, 1918, and at the birth of her children, and her husband testified that she had never been sick except with the flu in the fall of 1918 and at the birth of her children, in the first part of his testimony he afterwards, as the trial progressed, on cross-examination, remembered a fight between his wife and a man named Hahmen in 1910 when Hahmen had struck her on the chest and injured her, from which injury she was laid up for some time. It developed that Dr. Whelpton, who attended Mrs. Rubinson at the time of the Hahmen trouble in 1910, had testified before the grand jury at that time that Mrs. Rubinson had dilation of the heart, exudation into the peritoneum, passed blood from the bowels, and had bruises in a number of parts of her body.

Defendants produced numerous witnesses who had known appellee for many years who testified that she had been in poor health during the last 13 years.

Appellee called four physicians to testify as experts as to her condition and the producing causes, and appellant called three physicians for the same purpose. Taking appellee's version of the accident as true, the physicians testified as follows:

Dr. Whelpton, the physician who testified before the grand jury in 1910 as to appellee's injuries then, testified that her present troubles of the heart, liver, gall bladder, and kidneys could have resulted from the accident in controversy in this case.

Dr. Baker, who attended appellee when Dr. Whelpton was away, testified that such an accident would not produce her injuries, but might aggravate a diseased condition already present. His opinion was that appellee had a diseased condition of her heart of long standing, and that the accident might have broken the compensation, and the diseased heart produced the other ailments.

Dr. Schooler testified that the disease of appellee's heart was hypertrophy and dilation, and not a result of the accident; that it was a...