Wheeler v. Des Moines City Ry. Co.
Decision Date | 15 November 1927 |
Docket Number | 38291 |
Parties | EVA WHEELER, Appellee, v. DES MOINES CITY RAILWAY COMPANY, Appellant |
Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 17, 1928.
Appeal from Polk District Court.--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, for appellant.
John McLennan and D. G. Baker, for appellee.
OPINION
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 three feet, six 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 two to eight 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:
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. He says 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 around through the glass. He testified that they had no signal that they gave to passengers or to anyone 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.
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:
There was no evidence upon which to base the first charge of negligence, as set out in instruction No. 1. The undisputed evidence is that the automobile was standing to the rear of the street car when the street car was started at the switch. The street car...
To continue reading
Request your trial