124 Iowa 665 | Iowa | 1904
Plaintiff claims that while a passenger-on one of defendant’s electric trains, running between Mason City and Clear Lake, he was seated by the conductor on a seat, provided for passengers near an open door, and, in this exposed position, was permitted to ride without warning of danger, and the train, being late, was run at an excessively high rate of speed on a down grade, and into a ten-degree-curve of the track, where the track was out of alignment — making a compound curve — -with the result that plaintiff' was lifted and thrown from his seat out of the door and upon the right of way of the defendant company, producing-the injuries of which he complains. The alleged grounds.
The cross-examination of some of defendant’s witnesses is complained of. This is so largely a matter of discretion in the trial court that we do not ordinarily interfere. There was no abuse of discretion here.
There were no prejudicial errors in rulings on evidence.
Several objections are made to this instruction. It is' said that it is uncertain as to what claims are referred to — whether those stated in.the petition or in plaintiff’s evidence; uncertain as to what facts and circumstances might be considered in support of the presumption — that is, whether those alleged as negligence or otherwise; and that the jury was warranted therefrom in concluding from the testimony that, if the plaintiff fell from the car and was injured, the defendant was presumed to be negligent.
As to the first- point, there is no mistaking the court’s meaning. Plaintiff’s claim was stated in his petition. His testimony was in support of that claim, and there was evidence which tended to support every allegation in the pleading. So that, whether we look to the petition or to the evidence, his claim was one and the same. The jury could not have been misled, even if in doubt as to which claim the court referred to.
The second point made against it — that it was left uncertain as to what circumstances the jury might consider in support of the presumption — is equally untenable. Manifestly the instruction refers to the claims made by the plaintiff, which, as we have said, were sufficiently definite; and the word “ circumstances,” used in the last sentence of the instruction, clearly has reference to the same matter.
In other instructions the jury was plainly- told that, in order to recover, plaintiff must establish the negligence charged, and the last sentence of the charge refers to' the matters charged which the circumstances proved indicated "were the cause of the accident. That instructions should be construed together is a rule of law so well settled that it is useless to cite authorities in its support.
Defendant, while, in effect, conceding these rules, which are nothing more than amplifications of the maxim res ipsa loquitur, contends that they do not apply where the plaintiff is injured or thrown from a car by. a sudden jerk or lurch. There are some cases which tend to support this contention. Stewart v. B. & P. R. R., 146 Mass. 605 (16 N. E. Rep. 468); Heistine v. Lehigh Valley Co., 151 Pa. 244 (25 Atl. Rep. 104); Wilder v. R. R. (Sup.) 41 N. Y. Supp. 934. Properly analyzed, not all of these cases hold to the rule contended for by appellant. Some of them do, but in this they are out of harmony with the weight of authority. See Fetter on Carriers of Passengers, 1213, and cases cited; New Jersey Co. v. Pollard, 22 Wall. 341 (22 L. Ed. 877); Lavis v. Co., 54 Ill. App. 636; Murphy v. R. R. Co., 36 Hun, 199; Baltimore Co. v. Swann, 81 Md. 400 (32 Atl. Rep. 175, 31 L. R. A. 313); Burr v. Pennsylvania Co., 64 N. J. Sup. 30 (44 Atl. Rep. 845); Consolidated Co. v. Thalheimer, 59 N. J. Err. & App. 474 (37 Atl. Rep. 132); Dougherty v. R. R. Co., 81 Mo. 325 (51 Am. Rep. 239); Sprague v. R. R. Co., 34 C. C. A. 207 (92 Fed. Rep. 59); Birmingham Co. v. Hale, 90 Ala. 8 (8 South. Rep. 142, 24 Am. St. Rep. 748). Most of the cases seem to hold that unless the jerk, jar, or lurch of the car is extraordinary or unusual in character, no presumption of negligence arises. We think the true rule was given by the trial court, to wit, that where the evidence shows that a passenger is thrown, by the sudden lurch of a car, out of his seat and onto the ground, and such accident would not have happened under ordinary circumstances, had defendant’s servants used the requisite degree of care, and the passenger shows that he was not guilty of contributory
An instruction with reference to the effect to be given some claimed admissions made by the plaintiff is complained of. It is the usual stereotyped instruction relating to this matter, and need not be repeated. Suffice it to say, there was no error therein.
Contention is made that the instructions, as given, made the defendant practically an insurer of plaintiff’s safety. We do not think they will bear this construction. True, the court did refer to the fact that it was defendant’s duty to use
There is a conflict in the testimony as to how the accident occurred, and we cannot say that the verdict is without support.
We have now discussed every debatable proposition in the case, and, finding no prejudicial error, the judgment is AFFIRMED.