166 Iowa 548 | Iowa | 1914
I. On August 10, 1910, the plaintiff was a passenger of the defendant on its line of street railway which was being operated in the city of Marshalltown. She had arrived in the city at the station of the Northwestern Railway, having come from her home at Lamoille and took passage on defendant’s street car at the railway station. She claims that on entering the ear or soon after she told the conductor that she desired to get off at Second street, and that before reaching that point she signaled the conductor, who called the name of the street. She also claims that the car stopped at Second street, upon which she started to alight from it, and just as she had placed one foot on the street, holding to a rod or standard at the side of the car, which was an open one, the car started, without warning, throwing her to the brick pavement, and permanently injuring her.
The only ground of negligence charged is in starting the car after it had stopped, without .warning, and before she had fully alighted. The injuries which she claims resulted from the alleged negligent act, and without negligence on her part, were in the left half of the body,
*550 which includes the left shoulder, left side, and the left hip, left arm, and left limb, and also includes the spinal cord, spinal column, and the nerves radiating therefrom to the left side, and also includes the twisting, turning, and partial dislocation of the neck and head, so that the head is turned to the left, and also includes permanent injury to ligaments, muscles, etc., of the left side of the body, and also includes the left ribs and articulation, and connection thereto with the spinal column, and also includes heart troubles of nervous, arterial, and valvular, and dilation thereof, and also includes permanent injury to the veins and arteries of the left side, and also includes permanent injury to the eyesight of both eyes, and also includes permanent injury to the brain.
The trial resulted in a verdict and judgment for plaintiff for $6,000, from which this appeal is taken.
II. The evidence introduced on the part of the plaintiff tended to support her claim that the injuries of which she complained were caused by the car being suddenly started
Based upon this proof, the trial court, in its instructions to the jury, in referring to the claim of contributory negligence, stated the rule under the facts as follows:
If the plaintiff, as a matter of fact, attempted to alight from said car before it stopped, and while it was still in motion, then whether the plaintiff in so doing was guilty of negligence causing or contributing proximately to cause her 'injuries, and which would preclude a recovery herein, would*551 depend whether the plaintiff in so attempting to alight was at the time in the exercise of ordinary care; that is, that degree of care that an ordinarily careful and prudent person would have exercised under the same or similar circumstances. In determining whether the attempt of plaintiff to alight from the car while yet in motion, if she did so attempt, was negligence on her part, the speed of the car at the time, the manner in which she attempted to leave the,car, and any other facts and circumstances hearing thereon, so far as shown by the evidence herein, should he considered by the jury.
Error is assigned in the giving of this instruction, upon the ground that the only negligence charged in the petition was in suddenly starting the ear after it had stopped; and if, as submitted in the instruction, the accident occurred before the ear had stopped, the injury then resulted from causes not charged as negligence on the part of the defendant. It requires no extended citation of authorities to support the rule that in actions based upon negligence recovery can only be had upon proof of some one or more of the negligent acts charged. Manuel v. C., R. I. & P. Ry., 56 Iowa, 655; Carter v. K. C., St. J. & C. B. Ry., 65 Iowa, 287; Volquardsen v. Telephone Co., 148 Iowa, 77.
Counsel for appellee cites Root v. Railway Co., 113 Iowa, 676, and Beringer v. Railway Co., 118 Iowa, 135, in support of the proposition that, when a street car is stopped to permit a passenger to alight, it is bound to wait a sufficient time to enable the passenger to do so, and that it is negligence to start the car while the passenger is attempting to alight. We do not understand that this rule can be questioned, nor the further one stated in both of the cited cases that it is not negligence, as a matter of law, to attempt to leave a street ear which is in motion, although in some cases such may amount to contributory negligence. Under issues framed to support such rules, their application is correct. But they do not reach to the question presented in this record. There is no charge of negligence resulting from acts done before the car had stopped, and the criticized instruction placed before the jury
In a later instruction the trial court correctly stated the law applicable to the ease as follows:
. . . If the jury find that the plaintiff’s injuries were due to the act of the plaintiff in attempting to alight from said car while in motion, or to the fact that she attempted to alight therefrom in an improper way or manner, the defendant would not be liable herein; and if the injuries suffered by the plaintiff was the result of the negligence of the defendant operating with that of the plaintiff, the two being the proximate cause of the plaintiff’s injuries, the plaintiff cannot recover herein.
That there is conflict in the rules stated in the two instructions is apparent. The one recognizes as facts proper to be considered upon the question of contributory negligence what the other definitely states would constitute a bar to recovery under the pleadings in the case. Recognizing this, counsel for appellee urges the rule, announced by this court that instructions must be considered as a whole if they are not misleading, and announce correct propositions of law. Montrose Sav. Bank v. Claussen, 137 Iowa, 73; Hawkins v. Young, 137 Iowa, 281.
But we are of opinion that the rule cannot be used as a curative in the present case. As has already been stated, the instruction upon the question of contributory negligence recognized, and the jury would, we think, fairly understand from it; that the care or want of care of the plaintiff in alight
III. In stating the issues to the jury, the trial court substantially set out the averments of the petition as to the extent of the injuries claimed to have been sustained by the plaintiff,
We are of opinion that, in including in the statement of the case claims of injury or elements of damage as to which there was no proof, there were presented to the jury more than should have been done; and while we would hesitate to reverse the case on that ground alone, we think that adherence should be given to the rule that no more should he stated of the claim than there is evidence to support, and, when there is failure of proof as to any claim or condition, such should he definitely brought to the notice of the jury.
IV. Instruction No. 13 was as to the weight to be given to the testimony of expert witnesses who testified as to the physical condition of plaintiff and other matters. In the in-
Y. The evidence was to the effect that immediately following the accident there was an enlargement of plaintiff’s neck, which grew and assumed the characteristics and appear-
VI. The sufficiency of the evidence to sustain the verdict is raised in the assignment of error. There was evidence which required the submission of the case to the jury. As there must be another trial, we do not find it necessary to pass upon this question.
For the errors pointed out, the judgment is — Reversed.