Whitman v. Chicago Great Western Ry. Co.

• Decision Date: 21 September 1915
• Docket Number: 29872
• Citation: 153 N.W. 1023,171 Iowa 277
• Parties: SARAH WHITMAN, Appellant, v. CHICAGO, GREAT WESTERN RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

153 N.W. 1023

171 Iowa 277

SARAH WHITMAN, Appellant, v. CHICAGO, GREAT WESTERN RAILWAY COMPANY, Appellee

No. 29872

Supreme Court of Iowa, Des Moines

September 21, 1915

Appeal from Bremer District Court.--HON. C. H. KELLEY, Judge.

ACTION for personal injury. Opinion states the facts.

Reversed.

Sager & Sweet, for appellant.

Hagemann & Farwell and Carr, Carr & Evans, for appellee.

GAYNOR J. DEEMER, C. J., LADD and SALINGER, JJ., concur.

OPINION

GAYNOR, J.

This is an action to recover for personal injuries which the plaintiff claims she sustained in attempting to pass from defendant's waiting room on the evening of September 18 1910. It appears that the plaintiff was a passenger on defendant's railway from Waverly to the town of Tripoli Bremer county, Iowa; that she arrived at the town of Tripoli in the evening; went immediately from the train to the station house for the purpose of awaiting the coming of her husband. After waiting a short time at the station house, in the waiting room, it became dark. No lights were in the waiting room, or about the station house, except one in the ticket office, where the station agent was at work. When she went to the station house to wait for her husband, she asked the ticket agent, in charge of the station, whether any of her people had been in town that day, and he said they had, but had gone home. She asked him then if she might wait there in the station house and he said "Yes. I am going to supper and will be back in a little while. You can stay here." After she had remained in the station house a short time, she went to the hotel to get her grip, which someone had carried there. She returned, however, with her grip to the depot. When the agent returned from supper, she asked him if she could use the telephone to call her husband. The agent told her she had better go to the hotel and telephone from there; so she started to leave the waiting room for that purpose, leaving her grip behind. In passing out of the door, she fell, and received the injuries of which she complains.

She testified that she went to the hotel for her grip before the agent went to supper, but after she had asked him if she might remain in the depot. She also testified that it was light when she got back from the hotel; that in going to the hotel, she departed and returned through the same door out of which she fell. She also testified that it was dark when she asked the agent if she might use his telephone to communicate with her husband. She further testified: "When I started to the hotel to telephone, and at the time I fell, it was so dark you couldn't see the steps or anything. Couldn't see the platform or rails"; that she was not positive whether the door was closed and she opened it, but thinks it was open. She noticed that it was dark outside, and that she couldn't see the steps. As to her fall, her testimony is: "After starting to go to the hotel, I stepped out the door to step down and the next thing I knew, I laid upon the platform." She says she noticed it was so dark that she couldn't see, at the time she attempted to leave the waiting room and fell. There were three steps leading to the waiting room. She said she had the steps in mind when she started out to telephone; that she looked to see where they were, but it was so dark that she couldn't see. She further testified: "I don't think I had hold of the doorway on either side as I went to step out."

The train on which the plaintiff arrived reached Tripoli about 6 o'clock in the evening. There was no other train scheduled to leave Tripoli on that day after 6 o'clock. The next train was scheduled for 7 o'clock the next morning. No train stopped at or carried passengers from Tripoli between these hours.

The cause was tried to a jury and a verdict rendered for the defendant. Judgment being entered upon the verdict, plaintiff appeals.

In view of the fact that this case must be reversed, we have not attempted to set out all the evidence, or even a substantial portion of the evidence that went to make up the case. Nor do we assume to pass upon the sufficiency of the evidence to make a case for or against the plaintiff. The plaintiff in her appeal complains of the action of the court in the submission of the cause to the jury. We will not attempt to set out the errors complained of in the language of appellant, not in the order in which they are presented in appellant's brief. Suffice it to say that the plaintiff complains of the instructions of the court to the jury as a whole. Although appellant has divided her complaint of these instructions into several parts, the objection urged, when concretely stated, is that the court unduly emphasized what the court conceived to be the duties which the plaintiff owed to herself for her own protection; unduly emphasized the things omitted by her which she might have done, with the suggestion added that the omitted things, if done, would have prevented the accident of which she complains. There is no claim that the court did not correctly state the law of the case, but in the manner of stating it, the court made prominent and gave undue emphasis to those facts from which an inference of negligence on the part of the plaintiff might be drawn, and omitted any suggestion as to facts quite as well established and as closely related to plaintiff's conduct at the time as were the facts set out or referred to and emphasized in the instructions, from which an inference of due care might be drawn.

Thus it is claimed that the court in its instructions made a point to the jury of the fact that the plaintiff failed to ask for lights, while no word was spoken to the jury of the duty of the defendant to furnish lights. The attention of the jury was especially directed to the fact that the night was dark, very dark; that the plaintiff knew it was dark, and knew that she could not see the steps when she attempted to pass out the door. The suggested inference is that she was negligent in attempting to pass out the door without asking for lights, under the conditions that attended her act. The jury's attention was especially directed to the fact that she had previously passed over these steps and through this door when it was light and she could see; that when she attempted to pass out the door at the time she fell, she failed to take hold of the door jamb.

As will be seen hereafter, the inference suggested by the instructions, as given, in the manner in which they were given, was that reasonable care required plaintiff to ask for lights before attempting to leave the room; that a failure to take hold of the door jamb in attempting to pass out of the room was an act of carelessness. It is claimed, in fact, that the court in its instructions called the jury's attention especially to all the points of weakness, if any weakness there was, in the plaintiff's evidence touching her contributory negligence; while it passed over, in general terms, the negligence of the defendant, saying simply, when speaking of defendant's duties and the negligence charged against the defendant:

"The burden of proof is on the plaintiff to show that the defendant was negligent in respect to the matters charged, or some of them; that negligence is the omission to do something which a reasonably prudent person, guided by these considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonably prudent person would not do, under similar or like circumstances."

We are inclined to think that there is some justice in the criticism urged against these instructions, though not to the extent urged. It has been repeatedly held by this court that it is the duty of the trial court, in its instructions to the jury, to submit to the jury, fully and fairly and impartially, the law essential to a proper determination of the rights of the parties under the record made. The attention of the jury should not be drawn to nonessential facts,--facts not determinative of the rights of the parties. The court should not emphasize or give undue prominence to evidentiary facts, the existence or nonexistence of which must be settled by the jury. See Campbell v. Wheeler, 69 Iowa 588, 29 N.W. 613; Doyle v. Burns, 138 Iowa 439, 114 N.W. 1; West v. Railway Co., 77 Iowa 654; Van Norman v. Modern Brotherhood, 143 Iowa 536, 121 N.W. 1080; McBride v. Railway Co., 134 Iowa 398.

The court, in its eighth instruction to the jury, said:

"Both the plaintiff and the defendant were required to exercise ordinary care under the circumstances. You should carefully note that the degree of care which the plaintiff was required to exercise is exactly the same as that...