Fanelli v. Illinois Central Railroad Company ( 1955 )

Larson, J.

This is a personal injury suit resulting from plaintiff’s fall while alighting from defendant Pullman Company’s coach on defendant Illinois Central Railroad Company’s train standing at the depot in Fort Dodge, Iowa. The accident happened on the morning of February 14, 1951, at approximately 11:30 a.m. Plaintiff dozed off about a half hour before the train arrived and did not awaken and alight with other passengers. Fort Dodge being a division of the railroad, the train’s departure is delayed some fifteen minutes to change crews. Plaintiff was awakened by the conductor, asked her destination, and advised to alight immediately as the train was ready to pull out. As she started to descend the steps of the coach to the station platform she fell and was injured. She was unable to tell how the accident occurred, and the trial court sustained the motion of both defendants for a directed verdict- on the ground that plaintiff had failed to introduce any evidence of the breach of duty toward her as a passenger.

Plaintiff contends the trial court erred in directing a verdict against her for (1) the record allows a jury finding that defendants were negligent because the Pullman porter was not present to assist plaintiff when she was “put off”; (2) the record allows a jury to find the injury was caused by the unsafe and negligent manner and place that plaintiff was “put off”; and (3) the absence of any explanation by defendants accounting for plaintiff’s injury while in their care, or the combination of circumstances which led to the injury. We must therefore review the record to determine whether there was such an absence of evidence to justify the trial court’s action. While the law and the facts are not greatly in dispute, their effect and the inferences suggested are vigorously argued.

I. The trial court having directed a verdict, the testimony offered by the plaintiff must of course, for the purpose of this appeal, be considered as the established facts of the case. No authority is needed for this rule, but we discuss it in Fitzgerald v. Des Moines City Ry. Co., 201 Iowa 1302, 207 N.W. 602.

II. Negligence is a fault, is not to be presumed, but rather must be proved. That is plaintiff’s burden. It cannot be assumed from the mere fact of an accident and an injury. See Lindquist v. Des Moines Union Ry. Co., 239 Iowa 356, 360, 30 N.W.2d 120, 122, where we said: “If no duty exists there can be no negligence upon which proximate cause may be based and hence no recovery may be had.” Also see 38 Am. Jur., Negligence, section 290, page 983. The one exception under the doctrine of res ipsa loquitur we shall deal with later herein.

III. A high degree of care must be exercised by a carrier in foreseeing, as well as guarding against, danger to its passengers. In our recent eases of Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 1140, 49 N.W.2d 501, 504, and Murray v. Cedar Rapids City Lines, 242 Iowa 794, 800, 48 N.W.2d 256, 260, we cite with approval the often cited and approved rule set forth in Kliebenstein v. Iowa Railway & Light Co., 193 Iowa 892, 895, 188 N.W. 129, 130, where we said:

“That a carrier of passengers for hire must exercise more than ordinary diligence in the protection of its passengers is a rule well established. The carrier’s duty stops just short of insuring the safety of the passenger, and the common expressions of the law on this subject ar.e that the carrier is bound to protect the passenger as far as human care and foresight will go, and that the carrier is liable for slight negligence.”

In other words, the carrier’s duty to protect the passenger stops just short of insuring the passenger against injury. Waterloo Savings Bank v. Waterloo, C. F. & N. R., 244 Iowa 1364, 1368, 60 N.W.2d 572, 574. That this is the rule governing the case at hand there can be no doubt.

But we also said in the Murray case at page 800 of 242 Iowa, page 260 of 48 N.W.2d: “A common and proper qualification of the rule under its various statements is that it applies only to dangers which reasonably and naturally may be anticipated.” (Emphasis supplied.) 13 C. J. S., Carriers, section 678b; 10 Am. Jur., Carriers, section 1246; Weber v. Chicago, R. I. & P. R. Co., 175 Iowa 358, 364, 151 N.W. 852, L. R. A. 1918A, 626; annotation 69 A. L. R. 980.

What dangers reasonably and naturally may be anticipated herein? The plaintiff had been originally awakened by the porter as requested, had dressed, had her breakfast in the diner, and returned to her made-up section to read. She testified: “About half hour out of Fort Dodge I put on my coat to be ready to get off the train. I must have dozed off, because what I remember again is the conductor shaking my shoulder and asking where I was getting off. I said ‘Fort Dodge’ and he said ‘Well, you’d better hurry because we have been there’ — I don’t know what length of time — and he said ‘we are ready to pull out.’ ” When she reached for her grips, she testified the conductor said, “ ‘No, you run on ahead, I’ll see that you get your grips.’ ” She went on out of the ear, and he remained to care for her luggage.

The plaintiff, Carmel R. Fanelli, is a young woman 5 feet 3 inches tall, and at the time was wearing a fur coat, and had on shoes with heels about 2 or 2% inches high. She did not wear glasses, but was a bit hard of hearing. There was no evidence, visible or otherwise, to indicate she had any physical infirmities and none was disclosed to defendants. She had taken that train from Chicago about three times a year for nearly twenty years. She stated on other occasions the porter had assisted her with a movable step. There were four steps on the coach.

The only testimony as to what happened after plaintiff reached the vestibule platform of the coach was related by her. She said: “I got to the platform and grabbed the rail in order to go down the steps. No one- was there; nobody was around at the time. * * * I looked out to see where I was going down. * * * I know I grabbed the rail, and I went to put my foot out, and that’s all I remember until I heard a man say: ‘Don’t pick her up, she is dead.’ ” As the porter and another trainman picked her up from the station platform she said: “I leaned back * * * against the [Pullman] step and put my hand on the second [from the top] step and it touched something. I looked to see what it was. It was the tip of my heel. As I picked it up, I felt the stairs. They were wet and slippery. * * * And I looked at my hand and it was all dirty and wet.” On redirect examination the plaintiff further stated: “I fell from the platform * *' * I didn’t get a chance to take a step, as I remember. * * * I started from the platform, put my foot from the platform to the first step, and that is as far as I know. I fell forward onto the ground, you know, sideways.” She was later assisted into the station and taken home by taxi. No other direct evidence was offered as to the cause of the fall. Defendants urge that plaintiff failed to prove or furnish any evidence tending to prove any culpable negligence on the part of the defendants, or either of them, which was the proximate cause of her injury.

Briefly, plaintiff’s alleged grounds of negligence, which she maintains the evidence, viewed in its most favorable light for her, generated a jury question, were that defendants were guilty of a breach of duty, by failing to awaken her a reasonable time before the arrival at the station, by improperly demanding that she leave the train hurriedly, by failing to assist her, a Pullman passenger, in alighting from the coach, by failing to provide a reasonably safe means for passengers to leave the. train, by creating dangerous conditions when plaintiff was leaving the train, and generally, by failing to operate the train so as to provide for complete safety of passengers.

The trial court held there was no relevant evidence of the breach of any duty owed plaintiff, specifically as alleged or generally, and that there was no showing of defendants’ negligence having a causal connection or which could be the proximate cause of her fall and injury. After a careful review of the evidence, we must agree. No testimony offered by plaintiff made it reasonably apparent to tbe employees of the defendants that there were any unusual difficulties or dangers attendant to plaintiff’s act of alighting on this particular morning so as to require physical assistance by the defendants. What was the duty owed plaintiff herein, the breach of which would give rise to carrier negligence.? What evidence did plaintiff offer disclosing a danger which human care and foresight could reasonably anticipate ? Rozmajzl v. Northland Greyhound Lines, Weber v. Chicago, R. I. & P. R. Co., and Murray v. Cedar Rapids City Lines, all supra. When awakened the second time by the conductor, plaintiff did not testify that- she became confused, flustered or bewildered, nor that she was disturbed and not in possession of all her faculties when she departed from the coach. The circumstance of being awakened from a nap as a matter of law carries no such implication. It may have been a possibility and plaintiff had the opportunity to so state, when testifying, if such were the facts, but she did hot so testify. The same reasoning must be applied to the argument that it could be inferred when she was told to “hurry” or “run along”, that she rushed or ran from the car. Obviously that reaction by the plaintiff would disclose a danger of accident, but here again she testified: “I was not running as I went down the steps. I was watching where I was going. I had put my hand on the rail.” Such testimony, we believe, clearly fails to indicate a circumstance requiring the conductor to foresee a danger and therefore creating a duty for him to physically assist this obviously able-bodied young woman to alight from the coach. In a manner, however, he did assist her, as by custom most porters assist passengers in attending to and unloading their luggage. Ordinarily custom does not create a duty, though here we find no evidence of custom. 38 Am. Jur., Negligence, pages 1015, 1016.

IY. It is well settled in most jurisdictions that unless assistance is requested by a passenger, or that it would appear evident to a reasonably careful person that the passenger is in need of aid due to age, illness, infirmities, or objects being carried, there is no duty upon a carrier to assist passengers physically to board or alight from a coach or bus. The duty arises when the need becomes apparent, and not before. Olson v. Des Moines City Ry. Co., 186 Iowa 384, 392, 170 N.W. 466; Ray v. Chicago & N. W. R. Co., 163 Iowa 430, 144 N.W. 1018; Mitchell v. Des Moines City Ry. Co., 161 Iowa 100, 141 N.W. 43; 10 Am. Jur., Carriers, page 227; 55 A. L. R. 389; 13 C. J. S., Carriers, page 1362; 10 Am. Jur., Carriers, pages 230, 231; Wisdom v. Chicago, R. I. & G. Ry. Co., Tex. Civ. App., 231 S.W. 344; Younglove v. Pullman Co., 207 F. 797; Gardner v. Chicago & Milwaukee Electric R. Co., 164 Wis. 541, 159 N.W. 1066, 1067; Smith v. Chicago & N. W. Ry. Co., 246 Wis. 628, 18 N.W.2d 352. We have searched for authorities holding that the carrier owes Pullman passengers a greater duty of assistance in alighting than other passengers, as suggested by plaintiff, but found none. We cannot in reason affirm such a rule, for clearly all Pullman passengers do not require or desire physical assistance in alighting from the coach any more than do passengers in regular coaches. The rule of request or apparent need is sufficiently broad, we think, to cover the legal duty imposed upon carriers. Younglove v. Pullman Co., supra, 207 F. 797, 802; 48 Am. Jur., Sleeping Car Companies, pages 485, 490. The usual services by porters of The Pullman Company include removing passengers’ bags and packages, aiding the infirm physically, and giving a hand to passengers as they step from the lower coach step to the movable step placed upon the station platform, as well as other requested services. It is true on this particular morning both the step and the porter Avere missing, due to the fact no doubt that all the other passengers had left the train some time before. This circumstance and the “wet and slippery” steps, plaintiff says, disclose a breach of duty OAved her, and this negligence was a proximate cause of her injury in that had the porter been there he could have caught her and prevented the injury she suffered. We cannot agree that catching falling passengers is one of the usual or customary duties of a Pullman porter. The great difficulty AA'ith this argument, as pointed out by the trial court, is that unless she had requested assistance or her need was apparent, the defendants owed her no duty to be at the platform to assist her to alight, and that according to her oavii testimony her fall was from the coach platform four steps up, and not while she 'was attempting to negotiate the last coach step to the ground. The failure of the porter to be in attendance when plaintiff fell, as she started to descend the car steps, was not then the proximate cause of plaintiff’s fall and consequent injury. It had no causal connection with her fall or injury.

Plaintiff further urges other circumstances were related which under the law established an apparent need of passenger assistance. It is true circumstances attending the alighting may disclose a breach of duty owed the passenger and may result in the establishment of a prima-faeie case of negligence in the carrier. If steps over which the passenger must pass are shown to be icy, slick, worn or defective, or the place of alighting hazardous, such circumstances may give rise to an apparent need of passenger assistance over the hazard. Olson v. Des Moines City Ry. Co., supra, 186 Iowa 384, 170 N.W. 466; Wisdom v. Chicago, R. I. & G. Ry. Co., Tex. Civ. App., 231 S.W. 344; Gegere v. Chicago & N. W. Ry. Co., 175 Minn. 96, 220 N.W. 429, and many others. It must be conceded if plaintiff had testified she stepped upon an icy or slippery step while descending from the coach, slipped and fell, a jury question would have been generated, for then an explanation or rebuttal would have been necessary on behalf of the defendant. Such is the effect of the eases cited above. In all such eases, cited by plaintiff, the injured party had slipped and fallen as a result of some such circumstance, and the court held therein the carrier knew or should have known of the defect or hazard and should have furnished passenger assistance over the hazard. In none of them does the court resort to an inference to find that the injured party reached the hazard and was injured. Thus such cases have no application to the case at bar. It may be well to point out that no evidence appears which even tends to prove defendants or anyone else knew or should have known any step was wet or slippery. It is true the porter said, “ ‘I am sorry, I should have been there to help you’ ” when he helped pick her up, but this statement, we think, falls far short of an admission of neglect of legal duty. Usually a porter or trainman assists passengers to alight by handing them over the movable step to the station platform, without regard to weather, season or conditions under foot. This is for the reason no handrails are available to aid the passenger in making that step. Certainly his statement then cannot in reason be found to give rise to an inference that he knew the steps of the coach were hazardous or that he was remiss in a duty to. assist plaintiff down the steps. No reason appears why the porter was not called, and therefore such an inference is not justified. Except for plaintiff’s meager testimony regarding the second step, the condition of the steps was largely left to inference. She alone testified the second step was wet and slippery to the touch. From that testimony we may of course reasonably infer that step was also slippery under foot, but may we carry that inference to include all the steps? .We think not, for inferences ordinarily may not be raised from a fact proved unless there is a rational connection existing between such fact and the ultimate fact inferred. 20 Am. Jur., Evidence, section 159, page 163. An inference must be drawn from the established facts which logically support the same. Smith, v. Chicago & N. W. Ry. Co., 246 Wis. 628, 18 N.W.2d 352. No testimony was offered as to the weather, temperature, conditions under foot, or any other material or relevant fact which would aid reasonable men in drawing an inference that the steps were all wet and slippery, to say nothing of inferring that she slipped on one of them. Again, if such facts were necessary, material and relevant to her ease, plaintiff must introduce them. We conclude an inference that all the coach steps were wet and slippery is not justified, or that the defendants must be charged with knowledge of such condition under the circumstances disclosed. However, even if it were determined the question of negligence was for the jury, she fails to show it the proximate cause.

Y. It is quite true that ordinarily what is the proximate cause of an accident or injury is for the jury to decide, but it is also true mere negligence which appears to have no causal connection with the injury is not actionable. It must appear that the injury was the natural and probable consequence of the negligence, wrongful act or breach of duty. Lindquist v. Des Moines Union Ry. Co., supra, 239 Iowa 356, 30 N.W.2d 120; Aitchison v. Reter, 245 Iowa 1005, 64 N.W.2d 923; Snook v. Long, 241 Iowa 665, 669, 42 N.W.2d 76, 78, 21 A. L. R.2d 1.

Unless then plaintiff shows somehow that she reached the hazardous condition, wherever it was, and where passenger assistanee over it was required, there could be no recovery. In fact, there would be no jury question as to whether or not the condition shown required such assistance, for such evidence would be immaterial. The trial court held plaintiff failed to establish any causal connection between the conditions complained of and her injury, and we must agree. Here again plaintiff concedes her direct evidence is slight, but contends by acceptable inferences the connection was established. Plaintiff testified she approached the steps to descend, but did not say she reached the first step. She testified the second step was slippery, and that after her fall she found a broken heel tip from her shoe on the second step. From these facts she contends there arises an inference that she reached the wet step, slipped thereon, broke her heel and fell to the ground. On the other hand she testified, “I fell from the platform * * * I didn’t get a chance to take a step, as I remember * * Thus it seems idle speculation that she reached the second step, or that any other step was wet and slippery. The finding of a broken heel tip on the second step is not inconsistent with a fall from the platform, and does not infer the heel tip came off at that spot, for we have no evidence as to how or where it was broken. Quite reasonably it could have rolled to that step.

We are not told what caused her to lose consciousness, and while it is true she need not disprove all other possible causes of her fall, it is just as reasonable to infer that she fainted, stumbled, turned her ankle, or broke the heel of her shoe as she turned to descend the steps. Such causes would logically occur to reasonable men as probable, and all such happenings would have been without fault of the defendants. Carriers are not insurers of their passengers, and no legal presumption exists that all unexplained falls a.re the fault of the carrier. We recited the applicable rule in the case of George v. Iowa & 8. W. Ry. Co., 183 Iowa 994, 998, 168 N.W. 322, 323, when we said:

“There is no case for a jury where the evidence leaves the happening of the accident a mere matter of conjecture, and as consistent with the .theory of absence of negligence as with its existence. Tibbitts v. Mason City & Ft. D. R. Co., 138 Iowa 178. Undoubtedly, the plaintiff fails if, as [a] matter of law, the testimony is in equipoise [citing cases].”

It may be true that if plaintiff bad been for some reason unable to testify, and the circumstances were the same otherwise, the permissible inferences would have required defendant to explain or rebut the prima-facie case of negligence as well as the inferred causal connection with the injury. George v. Iowa & S. W. R. Co., supra. But this is not the case before us. Plaintiff did testify as to the events just before and just after the fall, and her testimony, we think, prevents the operation of the rule announced in the George case. There we indulged in certain inferences where no direct evidence was available as to what happened to the passenger. There was no evidence there except as to the speed of the train and the unballasted roadbed which made the train “sway, jerk, jump” and which reasonably could account for decedent’s fall from the train. There we did indulge in the inference that the railroad may have been negligent in running the train over that stretch too fast and, with no other reasonable explanation for the accident and fall, held the facts and permissible inferences generated a jury question on negligence and proximate cause. Here, as previously pointed out, the plaintiff testified, “I fell from the platform * * *” clearly is in conflict with any inference she fell from some other place. Obviously we may not indulge in presumptions or inferences which are in conflict with direct testimony, even in sympathy for one painfully injured. This is so even though we do view the evidence and such inferences as may reasonably be drawn therefrom most favorably to the plaintiff. Could we permit a jury, in the light of plaintiff’s actual testimony, to infer that plaintiff went down two steps of.the coach, slipped on the spot where she later testified she placed her hand, and thus fell to her injury? We think not, and a verdict rendered upon such evidence alone would have to be set aside.

Eecognizing her duty to show negligence on the part of the defendants, and then to establish a causal connection with the accident and injury, plaintiff testified as to the events up to and after the fall. She leaves the causal connection entirely to speculation, which however was rather effectively rebutted by her own testimony. We find a similar case in Gardner v. Chicago & Milwaukee Electric R. Co., 164 Wis. 541, 543, 544, 159 N.W. 1066, 1067, where the Wisconsin Supreme Court in reversing a lower court judgment for the plaintiff said:

“The jury not only found there was a defect, but that it had existed so long that the defendants in the exercise of ordinary care ought to have discovered the defective condition in time to have prevented the injury. To our minds both findings rest upon conjecture. There is nothing in the evidence that furnishes any basis for a reasonably certain correct conception of the nature of the alleged defect, much less of its duration. Plaintiff, herself, is compelled to resort to an alternative, for she says her heel either sank in or was caught by something, but how or why it sank in or how or why it was caught we do not know. * * * We can guess that it consisted of this or that defect, but we do not know which. Or the step may not have been defective at all, for plaintiff may have fallen as she described without any actionable defect therein. Verdicts cannot rest upon conjecture.”

There too was a young able-bodied woman who stepped from the coach platform squarely on the first step, and as she started to take the next step she said her heel caught and she fell. No one saw the mishap; she did not look at the place where she fell before or after the fall; there was also no other evidence of a defect in the step offered; and she also failed to state her foot slipped. There the court concluded:

“In our view of the case * * * giving, as we do, full credence to plaintiff’s own testimony we hold that it fails to establish a cause of action.”

We here conclude the inferences plaintiff now wishes to aid her in establishing causal connection are not justified, amount to little more than conjecture and are rejected by her own direct testimony.

VI. From what has been said, it must be clear the doctrine of res ipsa loquitur is not applicable. It is conceded by defendants that they were in control of the coach plaintiff was leaving, though it was not in operation at the time. It was stationary at the depot. There is no showing by plaintiff as to what caused her to fall. Both are necessary elements to place upon defendants the burden to absolve themselves from liability for the damage. 10 Am. Jur., Carriers, pages 366, 370; 13 C. J. S., Carriers, pages 1455, 1460. The facts and circumstances accompanying the injury must be shown. 38 Am. Jur., Negligence, section 295, page 989; Shinofield v. Curtis, 245 Iowa 1352, 66 N.W.2d 465, and cases cited therein; Whitmore v. Herrick, 205 Iowa 621, 218 N.W. 334; Nicoll v. Sweet, 163 Iowa 683, 144 N.W. 615, L. R. A. 1918C 1099, Ann. Cas. 1916C 661; Dodge v. McFall, 242 Iowa 12, 45 N.W.2d 501.

We agree with the trial court when it said: “She had established that an accident occurred, but has not established how it occurred; and this is essential if the doctrine of res ipsa loquitur is to apply.” Her failure to show the cause of her fall leaves nothing upon which the doctrine can operate.

AYe find in 13 C. J. S., Carriers, at page 1460, the following: “Negligence is not inferable- from the fact that a passenger fell in alighting from a car because of the height of the running board. A' passenger, catching his foot on a step while alighting from a vehicle, must prove that the injuries were caused by a visible defect which the carrier could have discovered.”

AYhile we do not hold res ipsa loquitur is not applicable to such eases, we agree with the trial court that the facts and circumstances here related will not justify its application.

In the case of Gardner v. Chicago & Milwaukee Electric R. Co., supra, 164 Wis. 541, 544, 159 N.W. 1066, similar to the case at bar, the court discusses the related circumstances and states: “Verdicts cannot rest upon conjecture. * * * This is not a ease of res ipsa loquitur, but an ordinary negligence ease in which the burden rests upon the plaintiff to show to a reasonable certainty the nature and character of defendant’s negligence.”

We said in Dodge v. McFall, supra, on page 14 of 242 Iowa, page 502 of 45 N.W.2d: "* * * he must establish the way the injury occurred as well as defendant’s control of the instrumentalities involved. * * the doctrine of res ipsa loquitur does not raise any presumption as to what did occasion the injury; but, after the evidence has established the thing which did occasion the injury, then, under certain circumstances, this doctrine will raise a presumption of negligence.’ ”

We deem it unnecessary to extend this opinion further by discussing the many cases cited by able counsel upon the exercise of due care by carriers. In every ease cited by plaintiff there appeared positive evidence of the cause of the accident or fall, and a breach of some duty by the defendant carrier which had a causal connection to the injury. In the cases cited by defendants, on the other hand, there was a failure to show a breach of duty or a causal connection between that breach and the injury. All seem to agree on the rule as set out herein as to the high degree of care and foresight required of carriers, though not to the extent of making them insurers. Such would be the case herein if we were to reverse the trial court’s judgment.

In conclusion we must also hold, plaintiff having failed to show by relevant evidence any actionable negligence on the part of either defendant, or to establish any causal connection by facts or proper inferences between her injury and any breach of duty legally due her by defendants, the action of the trial court in directing the verdict for defendants and in denying plaintiff a new trial must be affirmed. — Judgment affirmed.

Wennerstrum, C. J., and Bliss, Gareield, Oliver, Smith, and Thompson, J J., concur. Mulroney and Hays, JJ., dissent.