Wheeler v. Des Moines City Ry. Co.

CourtUnited States State Supreme Court of Iowa
Citation205 Iowa 439,215 N.W. 950
Docket NumberNo. 38291.,38291.
PartiesWHEELER v. DES MOINES CITY RY. CO.
Decision Date15 November 1927

OPINION TEXT STARTS HERE

Appeal from District Court, Polk County; W. G. Bonner, Judge.

Plaintiff recovered a judgment for personal injuries sustained from a fall in one of defendant's electric cars while a passenger. Defendant appeals. Reversed.Corwin R. Bennett, of Des Moines, for appellant.

John McLennan, of Des Moines, and D. G. Baker, of Boone, for appellee.

MORLING, J.

[1] The controlling question is whether plaintiff was entitled to go to the jury. The immediate cause of plaintiff's fall was a collision between an automobile following and attempting to pass and the overswing of the street car as the street car was turning into another street.

The car was a two-man car, 35 or 40 feet long, provided with rear right-hand entrance and conductor's station at such entrance. The route of the car was east on Walnut street to Second street, thence north on Second. The car was admitted to Second street by means of a switch which the motorman operated through the front window. The car stopped at the switch for the purpose of receiving and discharging passengers as well as to open the switch. The overswing of the rear end of the car beyond the right rail in turning into Second street is, according to plaintiff's evidence, about 3 feet 6 inches. While the car was standing at the switch, a large ice truck stood between it and the right or south curb of Walnut street. It is assumed, but not proved, that the space between the car and the truck was sufficient to permit the passage of an automobile between them when the car was facing east. On account of the overswing, it was not sufficient when the car was turning into Second street. While the car was at the switch, an automobile stood 2 to 8 feet back of it. After the car started, the driver of the automobile sought to pass between the car and the truck, but the automobile was caught by the overswing, pushed against the truck, and gripped between them. The street car was brought to a sudden stop. The motorman says that the current was shut off as he started into the curve; that he did not apply the brakes, but the car came to a stop from the resistance of the automobile and truck. The defendant claims this to be the established fact. The trouble with this contention is that defendant introduced the testimony of a passenger that, “as soon as the crash was heard, the motorman applied his brakes, and the car stopped immediately.” As the case stands, it is immaterial whether the car was brought to a stop by the physical resistance of the automobile and truck or as the result of applying the brakes, for the evidence is that the brakes, if applied, were applied because of the collision.

The plaintiff boarded the car at the switch. She stopped at the conductor's station to pay her fare and receive change. She was incumbered with a package which she was carrying, and with a little girl, who was accompanying her. The car started about the time she paid her fare. While proceeding to a seat she was thrown, fell against one of the seats, and thereby sustained the injuries of which she complains. At this point it is necessary to consider her testimony. She says:

“The street car started with a jerk. I should judge the street car had gone around 5 feet before it had reached a speed of 15 miles an hour. The starting of the street car by a jerk overbalanced me. The street car stopped with a lurch. It stopped instantly. I was still off my balance by reason of the manner they started there at the time they stopped the car. That throwed me on to the seat. * * * That street car got up a speed of 15 miles an hour in 5 feet. I was overbalanced from the car starting, and, when the car was struck from the rear, it threw me. The collision of the automobile is what threw me along with being overbalanced. I was lurched sideways from the starting of the car. I hadn't fallen completely from the starting of the car, but I was lurched sideways and overbalanced. The street car ran about the length of itself before it stopped, 35 or 40 feet. It might have been more than that. It stopped with a sudden lurch when the back end struck that automobile. The seat I fell on was along to the north or left-hand side of the street car. I had been taking a step toward the front end of the car. * * * The car started immediately upon my entering the car. Immediately as I entered the car the conductor closed the door, and I handed him my fare, and the car started. After that I received my change, and made one step toward the front of the car before I fell. The car started immediately upon my getting my change. As I entered the car, the doors were immediately closed behind me. I handed the conductor a dime. I had the little girl with me, and in watching her--I was watching her when I received my change from the conductor--at the same time the car started, overbalancing me. * * * I was still on the back platform of the car when it started. I was west of the conductor at that time. At the time I gave him the dime I was west of him. As he handed me my change I was just to the side of him, and I started to raise my foot to go up that step. I was east of him at the time it threw me. It was the sudden stop of the street car that threw me on to the seat.”

There was no other evidence of the cause or manner of her fall. Some of the items of negligence assigned were not submitted to the jury, and we do not pause to detail them.

The motorman testified:

That he did not see the automobile at any time before the collision. He did not look. He saw the ice truck. That he could not have glanced around and seen the automobile without taking chances of running over somebody, and could not have seen the automobile attempting to pass if he had looked round through the glass. He testified that they had no signal that they gave to passengers or to any one approaching with an automobile that they were about to turn on a curve. The conductor saw the truck, and also the automobile standing in the rear of the car headed east. He says the automobile started about the time the car did; that at the time he gave the signal to start he thought the automobile would stay there until the car had passed round the curve. “What I was watching was whether the rear end of the car would hit the truck as we turned on the curve there. I did not give any signal to this automobile that we were going to make the curve instead of going on straight ahead. * * * This automobile was two feet back of the rear end of the street car. The street car started before the automobile.” There were two street car tracks on both Walnut and Second streets. Those laid on Walnut continued east beyond Second street.

The court submitted to the jury the following charges of negligence:

Instruction No. 1. The particular charges of negligence made by plaintiff in her petition as amended against the defendant, and submitted to you for your consideration, are: (1) In starting said street car when said ice truck and automobile were at the place hereinbefore alleged, and at a place so as not to permit said street car to pass said automobile and truck without coming in contact with the same. (2) In starting said street car too quickly, and putting the same into a high rate of speed without warning to the plaintiff, at a time when said automobile and ice truck were at the place alleged, and in running said street car at said high rate of speed to and against the said automobile then and there in said street, and thence bringing said street car to an abrupt and sudden stop. * * *

Instruction No. 2. * * * The plaintiff * * * must establish: * * * (2) That the defendant was negligent, through its employees, in one or both of the particulars charged and set out in the two numbered paragraphs in instruction No. 1 hereof. * * *

Instruction No. 8. You are further instructed, if you find from a preponderance of the evidence that the defendant's employees, in charge of said street car, after plaintiff had boarded same, attempted to run said car around the curve in question knowing, or, in the exercise of that high degree of care required, should have known, that said car could not complete the turn in said curve without coming in contact or collision with the vehicle then standing to the rear and to the right of said street car, should it attempt to pass to the right thereof and between said street car and said ice truck before said street car had passed beyond said ice truck, by reason of the swinging out of the rear part of said car, did come in collision with said automobile, causing said car to come to a sudden stop or jerk, while plaintiff was walking to her seat, * * * this would constitute negligence on the part of the defendant, and in this connection you may take into consideration the manner in which the said car was started, * * * the speed of the car before the collision, the distance it had run before it stopped, the fact that an ice truck was standing to the right of said street car, its position, and the fact that an automobile was standing to the rear and to the...

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