141 Iowa 469 | Iowa | 1909
Tbe plaintiff alleges that, having entered one of the defendant’s cars for the purpose of becoming a passenger thereon, another person standing upon the street called him to return, whereupon he signaled the conductor to stop the car (which had begun to move forward) and permit him to alight, and while in the act of alighting or preparing so to do the defendant’s servants, knowing his peril, suddenly and negligently increased the speed of the car, throwing him to the ground in such manner that his arm was crushed under the wheels, and he was otherwise seriously injured. The defendant denies all of the allega
The plaintiff’s evidence tends to show that on the evening of July 7, 1906, at the corner of Fifth and Douglass streets in Sioux City, he boarded one of defendant’s cars moving east along Fifth Street and in the direction of Pierce Street. The car was of the open or summer pattern, passengers entering their seats from the side over footboards provided for that purpose. Plaintiff took a seat near the middle of the car, but before it reached the alley at the middle of the block one Renstad, standing upon the street, called to plaintiff to come back. Responding to this call, plaintiff asserts that he arose, and, standing upon the footboard, supported himself ■ by grasping the handhold or bar with one hand, and with the other gave the conductor, who was looking at him, the signal to stop. ITis version of what then occurred is stated in the abstract, as follows:
I was on the top board, and raised my hand for the conductor to stop. I saw the conductor at the time. He was ahead of me. I was standing on the running board and held with my left hand the brass bar, and with my right hand signaled for him to stop, and the conducfor winked and motioned me,this way (indicating). I said ‘Yes,’ and he blew the whistle, and the car slacked up, and I went down on the running board, on the lower board; yes, on the lower running board, and then he whistled twice, the conductor, and then the car gave a big move, you know, kind of a jerk, and then I fell down. I fell right down and hit right here (indicating). At the time of this forward move of the car I was standing to the east and faced to the east. I held on the car with my left hand. You see this, say, is east, I was standing or leaning this ways (indicating), holding on with my left hand for the bar with the handle. When I fell I fell right on the first running board, and my head hit right on the running board, and J got hurt right up here (indicating). I struck on the top running board. The scar over mv eye*472 is where I struck My feet was on the ground, and my body was on the running board, on both running boards; on one I was hanging with my left arm. I was hanging this way (indicating) on the top running board, and my feet was dragging on the ground. I fell right by the Lerch building. There was á pile of sand there. There was a pile of sand and then there was an alley. The pile was west from the alley, and the Lerch building is west of ■the alley. I think it was about twenty-five feet west of the alley that I fell, right by the sand pile. I do not know how long I remained in that position, but I got — well, I was unable to hold on and turned loose.
That he did fall from the car and received an injury necessitating the amputation of his arm is not controverted upon the trial. One or two other witnesses corroborate him in the statement that as he was in the act of alighting there was a jerk or increase of speed by the car, and that he fell, grasping the handrail or footboard, and in this position was dragged a distance estimated at from seventy-five to one hundred and fifteen feet before his hold was broken, and he passed under the wheels. The testimony on part of the defendant tends-very strongly to show that no signal to stop was given, or that, if given, it was not seen by the conductor, and that plaintiff in attempting to leave the-car while in motion fell and was injured without negligence on part of the conductor or motorman. The jury found for the plaintiff, and from the judgment rendered upon the verdict the defendant appeals.
In our judgment the trial court did not exceed its power or abuse the discretion with which it is vested in such matters. It is true that the verdict was irregular in form, yet the irregularity was upon its face so evidently the result of inadvertence upon part of the jury or its foreman, that, in the absence of any showing of prejudice, we are not prepared to say that the court would have been chargeable with error had it treated the verdict as one for plaintiff, even without recalling the jury for further examination, though that is a question not here presented, and we need not pass ujion it. See the opinion of this court in Gillespie v. Ashford, 125 Iowa, 729, where a case somewhat similar to the one now before us was under consideration and the authorities bearing thereon were collected. It is, we think, a common and -proper practice, where informal or defective verdicts have been returned, to recall the jury for their correction, where the same can be done promptly or within a reasonable time, and verdicts thus corrected are permitted to stand, in the absence of any showing- from which prejudice to the losing party may be inferred. In the case before us the trial court appears to have guarded the rights of the defendant in this respect with all due care, and the objection made to the reception of the verdict as corrected was properly overruled.
Nor the reasons stated in the second paragraph of this opinion, a new trial must be ordered, and for that purpose the judgment of the district court is reversed.