Farrell ex rel. Farrell v. Citizen's Light and Railway Co.

Weaver, J. Tbe defendant company operates a street railway in tbe city of Muscatine, Iowa, and at tbe time in question plaintiff was a girl of sixteen years of age, residing with ber father, and attending school in that city. According to her testimony, which is corroborated in most respects by other witnesses, she boarded one of the defendant’s cars to ride to a convenient point near the school in which she was a student. The car was of a kind used in warm weather, having a footboard or step running along the side, from which step direct access could be had to the seats which were set at right angles with the length of the car. On arriving at the place where she wished to alight, the car stopped, but as others were getting off at the same time, and direct egress was blocked, plaintiff went around to the rear of the seat she had occupied, and out upon the footboard at that opening. Just as she was stepping from the foot-board to the ground the car was started, throwing her down, and wrenching and injuring her knee- quite severely. On the part of the defendant it is contended, and there is evidence to the effect, that plaintiff was not at first intending to leave the car at this corner, but to continue her ride to another crossing, and in pursuance of such purpose she had requested and received a transfer permitting her to ride upon another line, the junction with' which had not yet been reached. There is also evidence tendiúg to show that when the car stopped at the place of the accident plaintiff did not arise or manifest any intention to leave the car until after it began to move forward, when she hastily stepped out upon the footboard, and thence to the ground, without [311] notifying tbe conductor of her purpose so to do or requesting bim to stop tbe car for her accommodation. The ’issue of fact thus raised was so clearly one for tbe jury that counsel’s argument is chiefly devoted to the consideration of errors alleged to have been committed by tbe trial court in its rulings on tbe admission of evidence and in giving and refusing instructions to tbe jury. 1. Street railways: personal injury: evidence: prejudice. I. Tbe manager of tbe defendant company testified that be was on tbe car at the time of tbe accident, and, having given bis version of tbe circumstances, was asked, on cross-examination, if be bad seen such . , ,, ,. accidents at any other time, and, on answering that be bad witnessed several of them, was further asked bow ’often such things bad occurred, and be responded that they were of frequent occurrence. This exámination was allowed over defendant’s objection, and tbe ruling is assigned as error. While tbe matter might have been properly excluded as irrelevant, there was no prejudice in its admissions. Tbe witness bad testified that plaintiff sprang up from ber seat and down tbe step to tbe ground after tbe car bad started, and tbe circumstances as related by bim were such as to indicate no negligence whatever on part of tbe company or its employés. It was such accidents — accidents in which no blame could attach to tbe company — 'that be said occurred frequently, and we do not see bow such matter could “in any way prejudice tbe defense in tbe minds of tbe jury. A somewhat similar record appears in tbe cross-examination of tbe motorman in charge of tbe car when plaintiff was hurt; but, for reasons already stated, we are disposed to bold there was no reversible error. [312] 2. Street car passengers: alighting: negligence: instruction. [311] II. It is next argued that plaintiff having taken a transfer to another line, tbe junction with which bad not yet been reached, tbe conductor was justified in assuming that she would remain in tbe car until such junction was reached, and if, without announcing ber change of purpose [312] or in some manner signifying such change to the conductor, she attempted to leave the ear before such point was reached, the defendant is not liable for her injuries if at the time she left the car it had waited a reasonable time for passengers to alight, unless the conductor at the time of starting the car actually saw her in the act of alighting. Upon this theory of the law the appellant’s counsel prepared an instruction which he asked to be given to the jury. This instruction was modified by the trial court and marked as • “ Instruction 1 — given at the request of the defendant.” The modification thus made is indicated by the italicized words in the quoted paragraph: 1. Applying for and receiving from the conductor a transfer to the Mulberry Street line was equivalent to a declaration by the plaintiff to the conductor that she intended to continue upon the car until it arrived at the passing switch, and unless the plaintiff, after receiving the transfer, in some manner communicated to the conductor that she desired to leave the car at the intersection of Iowa avenue and Second street, or did something at that point to indicate that she was about to leave the car, or make some attempt to do so, he had a right to assume that the plaintiff would remain upon the car until the passing switch was reached, and his giving the signal to start the car, after the other passengers had safely alighted therefrom, was not a negligent act, unless the conductor actually saw the plaintiff in the act of starling to alight or alighting when he gave such signal, or should have seen her by the exercise of the high degree of care required of him, as explained in other instructions given you, if in fact she did start to alight before such signal was given by the conductor. We are of the opinion that the modification thus made of the requested instruction was a proper one, and the rule as there stated is as favorable to the defendant as it was entitled to demand. The mere fact that plaintiff had, by taking a transfer ticket or otherwise, indicated an intention [313] to ride to the junction did not deprive her of the right common to all other passengers to leave the car at any intermediate stopping place, and if, at the corner in question when the car stopped for the discharge' of passengers, she arose from her seat, and by. her conduct reasonably indicated her desire and purpose to go out, it was the duty of the conductor in charge of the ear to give her reasonable time in which to make her exit. Whether she did thus indicate her purpose; whether reasonable time was in fact allowed; or whether she waited until the car was starting and then Stepped out — 'were matters in dispute which the court properly submitted to the jury. 3. Instructions: modification: submission by request: prejudice. But counsel say that, even assuming the correctness of the modified instruction as a legal proposition, it was prejudicial error in the court to give it to the jury as an instruction asked by the defendant, when in fact it had not asked such instruction in its modified form. While, strictly speaking, the requested instruction was not in all respects equivalent to the one which was given, the effect of the modification was simply to define the limitations of the rule stated by the appellant and to prevent any misapprehension by the jury of its proper force and application. It is not entirely clear whether the statute contemplates that the jury shall be informed of the fact that certain instructions given have been requested by a party to the suit. It would seem rather that the provision made for marking and designating such instructions as “ given ” or “ refused ” or “ modified ” is intended simply to preserve a proper record, and not as a matter of information to the jury, and that at most such provisions are directory only, and failure to strictly observe them is not prejudicial error. We have so held concerning an omission to number the consecutive paragraphs of the court’s charge. See Goin v. Hess, 102 Iowa, 140. Furthermore, it is to be said in the case now before us that the modified instruction appearing to • present a [314] correct proposition of law applicable to the issue being tried, it would b~ absurd to rule that either party may be prejudiced thereby whether it was given by request Or upon the court's own iuotion. It is not at all material that the court point out to the jury just what language has been requested by the party, and what modification the court has made therein. The material question for us to consider is whether the jury has been given proper instructions, and if so, we think it unnecessary to inquire as to their original conception, or trace the process of their evolution. Counsel for appellant says "a man ought not to be required to be right unless he wants to be; unless by being wrong he violates a criminal law; but is entitled, if a lawyer in appealing a case to the Supreme Court, to go before that tr'ibunal with all his faults upon his head." That counsel has not been deprived of this inalienable privilege is evident from the fact that he is here insisting upon the erroneous proposition contained in the requested instruction, thus exemplifying his right to be wrong if he insists upon it. The ultimate inquiry in this court so far as the instructions are concerned is simply whether the jury has been fully and properly directed as to the law of the case submitted for their verdict. Applying that test, we find no error in the record. 4. New Trial. Ill. The defendant's motion for new trial was grounded in part~ upon an alleged discovery of new evidence in support of the defense. The evidence referred to was ot a cumu~Lative character, having retere~ce so~e1y to matters of alleged fact concerning which other witnesses had given testimony on the trial, and the court did not err in refusing a new trial thereon. Counsel have also argued the alleged insufficiency of the evidenc€ to support the verdict. We shall not attempt to set out the testimony. If the appellee and several of her corroborating witnesses are to be believed, the defendant's employ~s were clearly negligent as charged in the petition. Nor is there any showing upon which we c~n say as a mattei [315] of law that she was guilty of contributory negligence. It is true that upon each essential proposition there was a conflict of evidence, but the truth of the contention thus raised was for the jury alone, and that issue has been found against the defendant. There appears to be no ground upon which we may properly order a new trial, and the judgment of the district court is therefore affirmed.