Monaghan v. Equitable Life Insurance

Salinger, J. I. On the authority of Cubbage v. Youngerman, 155 Iowa 39, a case which seems to be fully in accord with authority generally, the trial court held with the appellant that one who operates a passenger elevator in a building to which the public is invited, which elevator the public uses on such invitation, is held to the same measure of care that is required of a public carrier of passengers: that is, the highest degree of skill and foresight consistent with the efficient use and operation of the means of conveyance. The court followed this to its logical end, by hold — 353 — ing that, an accident being shown, and that an injury had happened, it was for the defendant to explain. Notwithstanding this, a verdict was directed against the appellant. It seems to have been done on the theory that conclusive explanation had been made. In ruling on the motion to direct, the judge said that such explanation was made because it was shown that the elevator was operating in its usual way, and was being handled by a careful operator; that there is no evidence that, when the speed was changed, as the elevator progressed upward and it slackened, with a view of halting at the fourth floor, which was the destination of the decedent, there was any motion except the regular, uniform, and habitual motion of the elevator; that it appears there was no jerking, no disturbance, and nothing to cause any passenger upon the elevator any inconvenience, or to put such passenger in any jeopardy. The judge declared it was very clear there could be no negligence arising from operation. He proceeds to say that this reduces the matter to the question of law whether the evidence would suffice to sustain a verdict, if one should be returned for the plaintiff. He states the evidence shows the elevator is of the latest and most approved pattern, and made by one of the leading, if not the leading, manufacturers of elevators in the country; that it is not shown it would be practicable now to fix the door on the outside in such way that there would be no space between the floor of the cage and such door, and so prevent a person falling forward, from having his face drawn therein. The conclusion was “that the presumption which arises from the accident and the injury has been overcome, so that, if there was any negligence to prove, it was upon the plaintiff to make proof of it.” Less than the trial judge recites will sustain his ruling. The pleadings make the case for the plaintiff a very narrow — 354 — one. This is so because the following concession was made by the plaintiff: “I do not rely on that second count: My whole reliance is upon the first count of the petition; and upon that I desire to stand.” The first count of the petition, after certain words were stricken out therefrom, on the motion of the plaintiff, is as follows: That, while riding as a passenger in the south elevator, or cage, maintained by the defendant, and while decedent was on her way to the fourth floor of defendant’s building, as a passenger in said elevator, and while in the observance of due care on her part, “she was thrown to the floor of the elevator in such a manner as to crush her head instantly, thereby causing her instant death.” It is alleged that “said negligence” caused the injury complained of. The only thing to which “said negligence” can or does refer is that decedent “was thrown to the floor of the elevator.” This must be construed to charge that she was thrown by the condition or the action of the car; for in no other sense would it be a charge of negligence for which defendant is responsible. So it is manifest that a verdict was rightly directed against the appellant, unless there be some evidence from which a jury might legitimately And that the head of decedent was crushed because some negligence of the defendant caused, her to be thrown to the floor of the elevator. Under the eliminations made by plaintiff, the controlling question is not, as the trial judge seemed to think, whether defendant has overcome a presumption that it was negligent, but is whether any such presumption was ever raised. 1-a The cases cited establish that, if the defendant’s elevator was in such condition or so operated as that it might have thrown decedent while a passenger in it, a presumption will be raised that she was thrown because of negligence of — 355 — defendant.' But in all of them there was evidence of such condition or such operation, or that something happened which would not ordinarily occur when machinery was in proper condition, or the elevator properly operated. In Railroad Co. v. Pollard, 22 Wall. (U. S.) 341, a jerk adequate to produce the injury suffered was shown. In New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40, a sudden starting of the train was disclosed by the evidence. In Goodsell v. Taylor, 41 Minn. 207 (42 N. W. 873), breaking or giving way of the elevator appeared. In Treadwell v. Whittier, 80 Cal. 574, and Griffen v. Manice, 166 N. Y. 188 (59 N. E. 925), there was evidence that the elevator fell because of breaking or defects in construction or machinery. In Hartford Dep. Co. v. Sollitt, 172 Ill. 222 (50 N. E. 178), and Ellis v. Waldron, 19 R. I. 369 (33 Atl. 869), the falling of the elevator was held to raise a presumption that same was faultily constructed, or out of repair. In Springer v. Schultz, 105 Ill. App. 544, the elevator fell. In Fox v. Philadelphia, 208 Pa. 127 (57 Atl. 356), the elevator suddenly started down, as the injured person was about to enter it at the invitation of the operator, and it was held: “The fact of the falling of the elevator is evidence tending to show want of care in its management.” In both Fitch v. Mason City & C. L. Tr. Co., 124 Iowa 665, 668, and Dieckmann v. Chicago & N. W. R. Co., 145 Iowa 250, there was evidence from which an adequate cause for the injury suffered could reasonably be inferred; and so of Dorn v. Chicago, R. I. & P. R. Co., 154 Iowa 144, Larkin v. Chicago & G. W. R. Co., 118 Iowa 652, Pershing v. Chicago, B. & Q. R. Co., 71 Iowa 561, 566, Smith v. St. Paul City R. Co., 32 Minn. 1 (18 N. W. 827), and Munsey v. Webb, 231 U. S. 150 (34 Sup. Ct. Rep. 44). It is proper summing up of the effect of these and like cases that, if there be evidence of a cause adequate to produce the injury, it will be presumed that the injury was thereby caused. But that cer — 356 — tain evidence will raise a presumption of negligence does not in the least tend to establish that there is such evidence. And presumption warranted by the existence of certain facts is no evidence of the existence of such facts. One may not beg the question of whether there was an adequate cause, by pointing out the consequences if there was evidence of such adequate cause. See Eisentrager v. Great Northern R. Co., 178 Iowa 713, at 722. Before we may reach consideration of what shall be presumed if there be any evidence that plaintiff suffered injury from being thrown, we must determine whether there is any evidence that she was thrown. At this point, the question resolves itself into whether plaintiff has more than that decedent fell over, and was found to be dead; and whether, if that be all, there is any presumption of negligence to overcome. Take a case where, as here, the highest care is due: that of'a passenger on a train. Will anyone claim that, upon proof that decedent was a passenger, fell from her seat, and proved to be dead, the carrier would be called upon to prove it was not negligent? Would not all agree that there was no such duty, because there was no evidence of negligence? That the carrier must absolve itself when something is shown by the plaintiff that raises an inference that defendant was negligent, is indubitable. But that does not change there is no such duty; and plaintiff fails, if nothing appear to raise a presumption of negligence. This plaintiff adduced absolutely nothing, beyond showing that decedent was a passenger, that she fell over, and was dead. We think that this constitutes a failure of proof, and that there is no presumption of negligence to rebut. There must be something more than proof that plaintiff was injured. Fitch v. Mason City & C. L. Tr. Co., 124 Iowa 665, 668. In that case, it is said: “Of course, mere proof of injury, without showing a collision, derailment, or other cause or circumstance con — 357 — nected with the operation or equipment of the road, does not make out a prima-facie case of negligence. In other words, from the mere fact that plaintiff was found along the side of the track with his leg broken, no presumption of negligence arises.” It is added that rebutting- the presumption is required only where a presumption arises, if at all, “from the cause of the injury which was the accident referred to by the court in this case, and from the circumstances attending it. When these are so unusual and of such a nature that .the accident could not well have happened without the defendant being negligent, or when it is caused by something connected with the equipment or operation of the train, a presumption of negligence arises on the part of the company.” Again: “We think the trne 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 the requisite degree of care been used, then a presumption of negligence on part of the carrier arises which must be met by it: as, for instance, by showing that such lurch, or jerk, was no more than would have happened in the exercise of due care. Further, that the presumption does not arise “from the mere fact that plaintiff fell from the train,” nor would it arise from proof of such fall and proof of “any lurch or jerk or jar of the car.” In line with our Fitch case is Pennsylvania R. Co. v. McCaffrey, (C. C. A.) 149 Fed. 404. In Paris & G. N. R. Co. v. Robinson, 53 Tex. Civ. App. 12 (114 S. W. 658), it is held that, where a passenger is killed by falling or being thrown from a moving train, there is no presumption that the carrier was negligent, until there is some evidence showing the cause of the accident, and tending to show it was due to something under the control of the defendant. In Levin — 358 — v. Philadelphia & Reading R. Co., 228 Pa. 266 (77 Atl. 456), the holding is: There is no presumption of negligence from mere injury to a passenger, where nothing happened to the car on which he was riding, and there was no injury to it, nor collision, nor breakage of anything. It is held, in Hart v. St. Louis & S. F. R. Co., 80 Kan. 699 (102 Pac. 1101), no presumption of negligence arises from mere proof that a passenger was missed from a train in which he was riding at night, that one of the vestibule doors was open, and that his mangled body was, next morning, found at the side of the track. The mere fact that a passenger is injured while aboard a car, or while alighting therefrom, creates no presumption that the injury was caused by want of care on the part of defendant operating such car. “It must first be shown that the injury came from the movement of the car by those in charge of it, or from something connected therewith or in the control of the defendant.” Wyatt v. Pacific Elec. R. Co., 156 Cal. 170 (103 Pac. 892). In Brown v. Union Pac. R. Co., 81 Kan. 701 (106 Pac. 1001), it was held that the cause of injury remained a matter of conjecture, despite the fact that there was evidence as follows: Deceased, a passenger, after the train had passed a station, was found 200 or 300 feet east of the station, with his leg severed and many bruises and wounds on his body; cinders and blood on the rails indicated the body had been dragged 25 or 30 feet; no one had seen deceased leave the coach or fall. In Thomas v. Boston Elevated R. Co., 193 Mass. 438 (79 N. E. 749), no presumption is held to have been raised by the fact that, while plaintiff was alighting from a car, her dress caught. In Paynter v. Bridgeton, etc., Tr. Co., 67 N. J. L. 619 (52 Atl. 367), Jarrell v. Charleston & W. C. R. Co., 58 S. C. 491 (36 S. E. 910), and in Paul v. Salt Lake City R. Co., 30 Utah 41 (83 Pac. 563) the holding is that evidence of a fall from a street car, with — 359 — out testimony as to how the fall happened, raised no presumption of negligence. And see Keller v. Hestonville, M. & F. P. R. Co., 149 Pa. 65 ( 24 Atl. 159), and cases therein cited; Barnes v. Danville St. R. & L. Co., 235 Ill. 566 (85 N. E. 921). In the argument here, appellant states that “she fell, there being no evidence of what caused her to fall.” Because of this failure of proof alone, no verdict for the plaintiff could rightfully have been sustained. II. But there is more than such failure of proof. It appears affirmatively, by the undisputed testimony for the plaintiff, that the elevator was in such condition and was so operated as that there could be no jerk or lurch or adequate cause for plaintiff’s fall, or to throw the decedent. The cage floor was smoothly covered with linoleum; there was nothing in the car over ■ which decedent could have stumbled, except her own handbag. The evidence as to the construction and operation of the car is so direct and positive, as to its having run smoothly, and so specific as to there having been no jerk or departure from the normal smooth progress of the car at the time of the fall, that, unless perjury be presumed, no jury could have properly found that there was any such at the time. Some of it is as follows: Immediately after the removal of the body, the car resumed regular operation. There was nothing done with the car, except removing the body and getting the gate back — nothing done to the mechanism of the car. The driver, who is shown without dispute to have been competent, and of long experience, said the car had been working up to the time of the accident always the same as it had been before. The driver testifies: “Yes, the car had been working good, and was in good condition. There was nothing unusual about the working of the car that morning. There was no jerk of the car at — 360 — the time Miss Monaghan fell. It was moving smoothly, without a jerk.” Another witness, defendant’s engineer, who inspected the car both before and after the accident, says: “To my knowledge, the mechanism of the car in which the accident occurred, would say that it was without defects, and nothing wrong.” Because of this situation, there is no room for the application of res ipsa. It follows the judgment of the district court must be — Affirmed. Ladd, Gaynor, and Stevens, JJ., concur. Preston, C. J., and Weaver, J., dissent.