Waterloo Sav. Bank v. Waterloo, Cedar Falls & Northern R. R.

• Decision Date: 20 October 1953
• Docket Number: No. 48306,48306
• Citation: 244 Iowa 1364,60 N.W.2d 572
• Parties: WATERLOO SAV. BANK v. WATERLOO, CEDAR FALLS & NORTHERN R. R.
• Court: Iowa Supreme Court

Page 572

60 N.W.2d 572

244 Iowa 1364

WATERLOO SAV. BANK v. WATERLOO, CEDAR FALLS & NORTHERN R. R.

No. 48306.

Supreme Court of Iowa.

Oct. 20, 1953.

Swisher, Cohrt & Swisher, Waterloo, for appellant.

Clark & Clark and Reed & Beers, Waterloo, for appellee.

THOMPSON, Justice.

This action was originally brought and prosecuted by Mrs. Nick Prevas, also known in the record as Helen Prevas, who will be referred to in this opinion as the plaintiff. After the judgment had been entered in the district court she died, and The Waterloo Savings Bank qualified as administrator of her estate and has now been substituted as plaintiff-appellee here.

On January 19, 1950, about 3:15 p. m. plaintiff was riding as a fare-paying passenger on a city bus owned and operated by the defendant in the city of Waterloo. The only other passenger on the bus was Mrs. Anna Fikejs, an acquaintance of Mrs. Prevas and a 'distant' neighbor. The two women sat in the same seat which was the first on the right side facing forward. There was a seat in front of it running parallel with the long axis of the bus. Mrs. Prevas sat next to the aisle. This seat is about four feet from the driver's seat according to Mrs. Fikejs' testimony.

Mrs. Fikejs testified that as the bus left the intersection of Locust and West Mullan avenues Mrs. Prevas said to the driver: 'Please let me off at Allen.' The bus was traveling on West Mullan, and Allen street is the next intersection and so the next stop after Locust. Mrs. Fikejs says Mrs. Prevas spoke to the driver when the bus was about two houses down West Mullan from the Locust avenue intersection. Mrs. Prevas, as a witness for herself, gave substantially the same testimony as Mrs. Fikejs on this point. The driver of the bus, Walter Schultz, denied he heard Mrs. Prevas say anything at the time.

As the bus was almost at the Allen street intersection it had not slowed down and Mrs. Prevas rose from her seat, saying: 'I told you I wanted Allen.' As she rose she reached for a pole which runs from top to bottom of the bus near and to the right of the driver's seat. The driver then applied brakes, whether suddenly or not being in dispute; but in any event Mrs. Prevas did not succeed in grasping the pole and fell to the floor of the bus. She was taken to her home, and, after a doctor was called, to a hospital where she remained for seventy-two days. After about two weeks it was discovered she had a fracture of the hop which her physician thinks was due to the fall in the bus. She had been suffering from what the doctor describes as a 'heart and lung condition' for some time before her fall. Other facts will be referred to in the various divisions of the opinion which follow, and as they relate to the matters therein discussed. The trial court submitted the case to a jury which returned a verdict for the plaintiff in the sum of $7,079.74.

Defendant assigns ten errors relied upon for reversal, but since some of them are related it discusses and argues them in five divisions. We shall follow these divisions, although not in the same order.

I. By motions for directed verdict, for judgment notwithstanding verdict, and by motion for new trial the defendant challenged the sufficiency of the evidence to warrant submission of the case to the jury. Its contention is that the burden was on plaintiff to show her injuries were occasioned by a sudden jerk or stop of the bus which was unusual and unnecessary. That this is a correct statement of the law is unquestioned, and it is so conceded by plaintiff's counsel. Our inquiry is therefore whether the facts shown in evidence, under the 'most favorable to plaintiff' rule, were sufficient to generate a jury question.

It is conceded that the defendant as a common carrier of passengers, while not an insurer of their safety, was bound to exercise the utmost care consistent with the operation of its business. We have said:

'The carrier's duty stops just short of insuring the safety of the passenger, and the common expressions of the law on this subject are that the carrier is bound to protect the passenger as far as human care and foresight will go, and that the carrier is liable for slight negligence.' Kliebenstein v. Iowa Railway & Light Co., 193 Iowa 892, 895, 188 N.W. 129, 130. And see Fitzgerald v. Des Moines City Railway Co., 201 Iowa 1302, 207 N.W. 602; Arnett v. Illinois Central Railroad Co., 188 Iowa 540, 176 N.W. 322, and Kellow v. Central Iowa Railway Co., 68 Iowa 470, 478, 23 N.W. 740, 27 N.W. 466.

It is in the light of this rule we must examine the situation here when we consider defendant's claim that there was no actionable negligence shown as a matter of law. It appears by evidence the jury had a right to believe, whether disputed or not, that as the bus left the intersection of West Mullan and Locust, one block away from plaintiff's desired stop at Allen, she told the driver she wished to alight there. She says she thought he acknowledged her request; and although a motion to strike her statement to this effect was made and overruled, no error is predicated on such ruling. Whether this leaves the answer in the record we need not determine for it appears she was sitting within four feet of the driver and it would in any event be for the jury to say whether he heard her. He was quite evidently within ordinary hearing distance. He says he did not hear and that three heaters in the car were operating and making much noise; but there was a jury question engendered.

Even without this we think the question of defendant's negligence was for the jury. The driver admitted he heard plaintiff call 'Allen' when he was near, 'almost on the intersection.' Again he says: 'I saw her rise when I applied the brakes. She was rising when I applied the brakes.' And at another point in his testimony is this: 'The plaintiff was just arising from her seat with right arm extended when I saw her in the rear vision mirror.' The effect of this is that he knew the plaintiff was rising from her seat with arm extended when he applied the brakes. The jury was entitled to find she was reaching for the pole near the driver which he says was two and one-half feet from her seat. Both Mrs. Fikejs and the plaintiff testified to the 'sudden stop' made by the bus, or to the stopping 'with a sudden jolt.' Mrs. Fikejs also said the driver 'slammed on his brakes.' This last statement is the subject of one of defendant's assignments of error and will be discussed later; but even without it there is sufficient evidence of the sudden stopping of the bus while plaintiff was, to the knowledge of the driver, in a position which made such action danagerous to her, to require submission to the jury. It was not required that passengers must use the means of signaling for stops provided by the company; there were no signs saying they must do so and the driver testified he is sometimes advised by voice. But we think the question of the notice given, or if it was given, is not of great importance at this point. When the driver saw Mrs. Prevas in the act of rising from her seat, with her arm outstretched, he was advised she was in a position in which a sudden stop might injure her. The jury might well have found, as it did, that the defendant did not exercise that high degree of care required of it toward its passengers, and that the stop made was unusual and unnecessary. Walters v. Des Moines City Railway Co., 191 Iowa 196, 179 N.W. 865; Patterson v. Omaha & Council Bluffs Railway & Bridge Co., 90 Iowa 247, 57 N.W. 880; Root v. Des Moines City Railway Co., 113 Iowa 675, 83 N.W. 904; Heinze v. Interurban Railway Co., 139 Iowa 189, 117 N.W. 385, 21 L.R.A.,N.S., 715; McMurray v. Twin City Motor Bus Co., 178 Minn. 561, 228 N.W. 154; Cassels v. City of Seattle, 195 Wash. 433, 81 P.2d 275.

Wheeler v. Des Moines City Railway Co., 205 Iowa 439, 215 N.W. 950, 55 A.L.R. 473, and other cases cited and relied upon by defendant are distinguishable on their facts.

II. We set out herewith the court's instructions Nos. 1 and 3.

'Number 1. In order for the plaintiff to be entitled to a recovery against the defendant in this case the burden of proof is upon the plaintiff to prove by a preponderance of the credible evidence each and every one of the following propositions:

'1. That the plaintiff was injured and damaged substantially as alleged in her petition.

'2. That the defendant was guilty of negligence as charged by the plaintiff, and which alleged negligence on the part of the defendant will hereinafter be stated to you by the Court in Instruction Number 3.

'3. That such negligence was the proximate cause of plaintiff's injuries and damages.

'4. The extent of plaintiff's injuries and damage, and the amount thereof.

'If the plaintiff has proved each and every one of said propositions by a preponderance of the credible evidence in this case then she is entitled to a recovery against the defendant; but if the plaintiff has failed to so prove any one or more of said propositions then she is not entitled to any recovery herein, and your verdict will be for the defendant.'

'Number 3. Referring to proposition number 3 in Instruction Number 1, you are now instructed by the Court that the only charges of negligence made by the plaintiff against the defendant submitted to you for determination are as follows:

'1. In carelessly and negligently stopping the said bus in such a way as to endanger the said plaintiff.

'2. In failing to stop said bus at the proper place and in the proper manner.

'You are instructed that it is immaterial in this case whether the defendant was negligent in any other respect than as so stated and charged by the plaintiff, and the defendant is not to be held liable to the plaintiff for any other negligence on the part of the defendant, if such existed, because the only charges of negligence on the part of the defendant made by the plaintiff and submitted to you by the Court for determination are...