Walters v. Des Moines City Ry.

• Decision Date: 20 November 1920
• Docket Number: No. 33521.,33521.
• Citation: 179 N.W. 865,191 Iowa 196
• Parties: WALTERS v. DES MOINES CITY RY.
• Court: Iowa Supreme Court

191 Iowa 196

179 N.W. 865

WALTERS

v.DES MOINES CITY RY.

No. 33521.

Supreme Court of Iowa.

Nov. 20, 1920.

Appeal from District Court, Polk County; Joseph E. Meyer, Judge.

Action for damages consequent on a fall as plaintiff was about to alight from a street car resulted in a directed verdict for defendant and judgment thereon. Plaintiff appeals. Reversed.H. S. Thomas, of Des Moines, and H. S. Stephens, of Clarinda, for appellant.

W. H. McHenry and Corwin R. Bennett, both of Des Moines, for appellee.

LADD, J.

At the conclusion of plaintiff's evidence, the court, on motion, directed the jury to return a verdict for defendant on the ground of insufficiency. Counsel for appellant contend it was sufficient to carry any of three allegations of negligence to the jury: (1) That the car on which plaintiff was riding was started while she was engaged in attempting to alight; (2) that in starting and operating the car defendant was negligent; and (3) that an inference of negligence arose from the facts shown.

One of defendant's street car lines extends along Ingersol avenue. This avenue is intersected by Twenty-Third street. The plaintiff, a resident of Clarinda, had been visiting Mrs. Nichols, who resided on Twenty-Third street to the north of Ingersol avenue, several days. At about 9:30 o'clock in the evening of July 16, 1918, they, having attended a picture show, boarded an Ingersol avenue car at Eighth and Walnut streets, Mrs. Nichols paying the fares, and, as the seats were all taken, they stood near the railing about the conductor. Mrs. Nichols testified she stopped--

“right where the conductor stands, taking hold of the rod, and Mrs. Walters was in front of me. She turned around facing me, and we stand there talking. The car was an old type car, open at the rear, the conductor at the rear of the car with a stand, and you walked behind him and step up into the main body of the car. There was a little railing, ordinary gas pipe, around the conductor, about waisthigh. I took hold of this railing with my right hand. Mrs. Walters was facing me and had a hold with her left hand. * * * We were standing on this side of the conductor, and I think he was facing the door. Conductor between us and the rear of the car. We were closer than two feet to the conductor. Neither of us had anything in our hands. The conductor called out the streets in order, and when he said ‘Twenty-Third street,’ I waited a few minutes, and said, ‘Twenty-Third street.’ He said ‘all right,’ and he stood there. The car slowed down, and came to a dead standstill. * * * I let go of the rod and started. Mrs. Walters leaned towards me, and I said, ‘The other way, Bess,’ and she was standing about this, and started to turn, and just then the car started forward, and she grabbed the rail, and I did, too, and as she comes back I grabbed the rod again and reached down and caught her by the elbow, and the car came to a stop again.”

The witness explained that between the first stopping of the car and when it started again was “two or three seconds, and inappreciable sort of time”; that “there was no signal given of the second starting of the car, though the bell was rung for the first. The door was open at the first stop and continued open until the second stop.” The plaintiff corroborated the foregoing testimony, swearing that--

“The car stopped, and I starting to go out of the car the same way I got on, took and leaned towards Mrs. Nichols, and she said, ‘The other way, Bess.’ I stepped back, keeping my right foot on the floor and moving my left foot; and as I started the car started with a jerk and hit me with the full force, and I went to the back of the car and rear, and I threw out this arm, catching hold of the rail with the left here, and throwing my foot back to catch myself, and braced my body and keep from going down, and my heel went in the crack of the floor, and my ankle, quicker than a flash, turned over and hit against those cleats. Q. How do you describe the starting of the car? A. It was very quick and jerked, just violently.”

Both witnesses testified that about 18 or 20 inches of the flooring was smooth, joining which was flooring with cleats from a quarter to a half of an inch thick, nailed thereon; that between the cleats and the smooth floor was a crevice about three-quarters of an inch in width. The plaintiff testified:

“I grabbed a hold of the rod, and my heel went back in that ditch. My ankle turned and hit against those cleats;” that had Mrs. Nichols not caught her, she would have gone to the floor; that the start after the car had stopped “jerked me * * * around the place where the conductor stands. Q. When the car first stopped, you started to go out the entrance way, did you not? A. I let go of the rod and just started, but I didn't go. Q. And Mrs. Nichols said: ‘The other way, Bess?’ A. She did. Q. You turned around to go out the other way? A. I did. Q. And that is when the start came, was it not? A. When the car jerked; yes. * * * I hadn't got a chance to turn to start towards the door; I had set my left foot back to turn when it came. Q. Which way were you facing when the jerk came? A. South. Q. You had not turned at all? A. Yes; I turned this way and went to step my left foot back. Q. You were still facing south when the jerk came? A. Yes. Q. You did not get turned clear around? A. No; I hadn't time to. Q. How far did the car move in that jerk, as you call it? A. Well, there was a car's length, judging from the place we had to get off. * * * The car stopped again; it didn't more than get started till it stopped again.”

Both witnesses say the conductor was looking towards the door all the time, and that the car had gone considerably past the place where it ordinarily stops, about a car's length. Mrs. Nichols swore that the jerk of the car threw her against the railing; that “the car started with a jerk after it had come to a dead standstill, and moved forward about a car's length, and then stopped again with a jerk. * * * Mrs. Walters let loose of this rail with her left hand after the car came to a stop for us to get off. * * * Q. You say...