
    Fannie Hutcheis v. Cedar Rapids & Marion City Railway Co., Appellant.
    Evidence: res gestae. The declaration of one injured, as to the 1 cause of the injury, when made without opportunity for premeditation, is admissible as part of the res gestae in an action for the injury.
    Street railways: negligence: care: instructions. An instruc2 tion that a street railway company is required to use “ extraordinary” care for the protection of it.s passengers amounts to a requirement that it shall use the highest degree of care conr sistent with the conduct of its business, and is not inconsistent with another instruction to the effect thát if plaintiff, with reasonable care on her part, was injured as a result of defendant’s failure to exercise such care, she could recover.
    Contributory negligence: burden of proof: instruction. The bur-3 den is upon the plaintiff, in a personal injury action, to show freedom from contributory negligence, and where the court’s instruction construed as a whole correctly states the rule, a single paragraph which standing alone might possibly be construed as shifting the burden, will not be held misleading.
    Damages: loss of wife’s services: instruction. While a hus4 band’s right of recovery for the loss of his wife’s services resulting from a personal injury, may properly be estimated on the present worth of the service, yet a general instruction permitting recovery for future damage will be upheld -in the absence of a request for a specific charge as to present worth.
    Same. The loss of a wife’s services is not to be estimated on a; 5 basis of her 'future commercial earnings, but the husband can recover, for her personal injury, such .damage as he has suffered by a loss of -her present and future service, assistance,, companionship and society.
    
      Appeal from Superior Court of Cedar Rapids. — How. James H. Bothrock, Judge.
    
      Wednesday, June 7, 1905.
    Action to recover damages for personal injuries alleged to have resulted from falling or being thrown to the pavement in attempting to alight from a street car operated by the defendant company. Verdict and judgment for plaintiff for $2,000. Defendant appeals. —
    
      Affirmed.
    
    
      Chas. A. Clark & Son and Wm. G. Clark, for appellant.
    
      Richel, Crocker & Tourtellot, for appellee.
   McClain, J.

Between 9 :30 and 10 o’clock p. m., plaintiff, together with her daughter and són-in-law, was a passenger on one of the open or summer cars of defendant, running from the eastern part of the .city of Cedar Rapids along First avenue westward, across the bridge over the Cedar river to the western part of the city. The cars of this kind were provided with a step on each side, extending the full ■length of .the car, by means of which the passengers entered and left the seats, -which extended crosswise the full width of the car. For the purpose of enabling the car to cross the bridge occupied by double tracks of the defendant, company, the step on the side of the car from which passengers should properly leave the car was so constructed "that while crossing the bridge it could be folded up against the side of the car, so as not to strike the trestlework. These cars are also provided with a bar or hand rail that is let down on the side of the car next to the trestlework of the bridge, so as to prevent, passengers leaning out and coming in. contact with it. This bar is let down to about the middle of the car while it is crossing the bridge,, and is immediately raised after the bridge is crossed. When the car on which plaintiff was riding reached the west end of the bridge, the bar was raised by tbe employes, and the car was stopped at the first street crossing west; and plaintiff, who was sitting on the right hand side of the car, attempted to alight, but fell to the pavement, as it is alleged, because the step, which had ' been folded up while the car was crossing the bridge, had not vet been let down so that it could be used by plaintiff in alighting. There was evidence tending to show the state of facts here described, and there is no question as to the sufficiency of the evidence to establish the negligence of the defendant in not having the step in proper position to enable the passengers to alight with safety, nor as to the evidence showing freedom from contributory negligence On the .part of plaintiff. The verdict of the jury is conclusive as tn defendant’s liability, unless it may be for errors of law claimed by appellant to have been committed by the court.

I. Plaintiff’s witnesses were allowed, over defendant’s objection, to testify that after plaintiff fell, she exclaimed, “ Tes; let the step down after I fall! ” this declaration being relevant to similar evidence tending to show that the step was let down after plaintiff fell, and not, as it should have been, at the time when the bar was raised after the car left the bridge, and before it stopped at- the street crossing. The objection to the admission of proof of this declaration is that it could not be shown as a part of the res gestee. Under recent decisions of this court, proof of the declaration was admissible. It was made immediately after the accident, with reference to the cause of the fall, without opportunity for premeditation. Without elaboration, it is sufficient to refer to Rothrock v. Cedar Rapids, (Iowa), 103 N. W. 475; Alsever v. Minneapolis & St. L. R. Co., 115 Iowa, 338; Keyes v. Cedar Falls, 107 Iowa, 510.

II. The court instructed the jury that: The defendant is what is known as a common carrier of passengers, and it is defendant’s duty, by itself and its employes, to use extraordinary care and precaution to protect its passengers from injury. Therefore, in determining whether the defendant, by its employes, was guilty of negligence which caused the accident to the plainy01I should hold it to the exercise of extraordinary care and caution to prevent injury to her. But in determining whether the plaintiff was guilty of negligence which contributed to the accident, you should hold her only to the exercise of ordinary care and caution.” In the next instruction the court told the jury that: “ If you find from a preponderance of the evidence that the plaintiff was a passenger on one of defendant’s cars, and that she attempted to alight therefrom, but that by reason of the negligence of defendant’s employes, or one of them, the step along the side of the car had not been let down so that she could step upon the same, and that, by reason of said step not being so let down, she fell to the pavement and was injured,’.’ and that she was not guilty of contributory negligence, then their verdict should be for the plaintiff; otherwise for the defendant.

It is now contended for appellant that, while the last instruction quoted was correct, the first was erroneous, in requiring of defendant’s employes extraordinary care and caution, and that the two instructions are inconsistent. Counsel do not claim that the carrier of passengers is not bound to exercise a’ very high degree of care and foresight for the safety of the passengers, but they contend that, after-all, the care and caution thus required is only reasonable-care under the circumstances, and therefore, that it was erro- ■ neous to instruct as to extraordinary care. It is true that the courts now generally discourage the classification of negligence into slight, ordinary, and gross, and the corresponding-recognition of degrees of care.

The expression ‘ extraordinary care,’ in the view • of." some courts, means no. more than that the carrier should use reasonable care, and that this reasonable care is a relative term, having reference to the duties which the carrier-has undertaken, and to the risks incident to the business.” 3 Thompson, Negligence, section 2746. But we are not referred to any authority in this state or elsewhere in which it has been held error to instruct the jury that the carrier of passengers is bound to use extraordinary care and caution for the safety of the passenger, and we think that the expression in the instruction given is no more than equivalent' to the rule well recognized in this State, and, indeed, universally in the American courts, that the carrier should use the highest degree of care that is reasonably consistent with the practical conduct of the business. Pershing v. Chicago, B. & Q. R. Co., 71 Iowa, 561; Bonce v. Dubuque Street R. Co., 53 Iowa, 278; Root v. Des Moines City R. Co., 113 Iowa, 675, 3 Thompson, Negligence, section 2722 et seq. There is no inconsistency between the two'instructions, for the first one defines what will constitute negligence of a carrier of passengers, and the second states that if, by reason of such negligence, the plaintiff is injured, she is entitled to recover.

III. An instruction as to contributory negligence is complained of because the jury were directed that if they found that plaintiff failed to use ordinary care, and that her failure to do in any degree contributed to her # U ° injury, their verdict should be for the defendant. TBe argument is that this language throws the burden of proving contributory negligence upon the defendant. But in the same instruction the jury were expressly told that as to the issue of plaintiff’s contributory negligence, the burden of proof was upon her to establish by a preponderance of the evidence that she was in the exercise of ordinary care and caution, and not guilty of negligence which contributed to her injuries. Taking the whole instruction together, the jury could not have been misled as to the burden with reference to contributory negligence, and could not have failed to understand that, unless plaintiff established by a preponderance of evidence her freedom from negligence, she was not entitled to recover.

IV. Plaintiff alleged and proved an assignment to her from her husband, prior to the institution • of the action, of his right to recover for injuries suffered by him by being deprived of his wife’s services, and for expenses incurred or to be incurred for medical and surgical attendance, nursing, care, etc. But it is urged that the court erred in its instructions to the jury as to the measure of plaintiff’s recovery under this assignment. The jury were instructed to allow on this ground “ such reasonable sum as you may find from the evidence to.be the reasonable value of such services as he will lose in the future because of his wife’s .injuries.” The objections argued to this and similar instructions seem to be (1), that the jury were not limited to the present value of the future services; (2), that the jury were not limited to the real value, but were allowed to take into account the peculiar value to the husband of the wife’s services, without allegation of any special damage; and (3), that the future earning capacity of the wife was not referred to as proper to be considered in mitigation of such damages.

While it is true that in a proper case, present worth, rather than the aggregate amount of future damage, should be estimated, we have repeatedly approved of general instructions allowing the recovery of damages to be suffered in the future, without specific instructions as to present worth, where no such instruction has been asked; and we have said that “ in such cases the best that can be done is to direct the jury as to the general basis on which the right to recover is .founded-, and allow them to fix such sum as, in their judgment, is reasonable.” Gregory v. Wabash R. Co., 126 Iowa, 230. And see Lowe v. Chicago, St. P. M. & O. R. Co., 89 Iowa, 420; Spaulding v. Chicago, K. C. & St. P. R. Co., 98 Iowa, 205, 219.

If it is the contention of counsel that the husband’s right of recovery is limited to the expense of hiring a domestic servant to do the household work which the wife was in the habit of doing before the injury, then we have to say that no such rule has been recognized in this State. In giving damages to the husband for injuries to his wife, the law does not compute his recovery on a commercial basis, but gives him such compensation as, in the judgment of the jury, is a money equivalent for the loss of such services, assistance, companionship, and society as he has been deprived of by the injury. Denver Consolidated Tramway Co. v. Riley, 14 Colo. App. 132 (59 Pac. 476); Denver & Rio Grande R. Co. v. Gunning (Colo. Sup.) 80 Pac. 727; Cooley, Torts (2d Ed.), 266.

We cannot see what bearing the question as to the future possible money earnings of the wife could have on the right of the husband’s recovery for injuries to the wife, which right was assigned to the plaintiff. If she should be able in the future to earn money in an independent business, such earnings would not belong.to the husband, .and would be no offset to the damages which the husband might have recovered, or which the wife may recover under the assignment from the husband. Mewhirter v. Hatten, 42 Iowa, 888; Fleming v. Shenandoah, 67 Iowa, 505; Hall v. Town of Manson, 90 Iowa, 593. The wife, under the assignment, is entitled to recover only the value of the services of which the husband has been deprived, or may be deprived .of in'the future, by reason of the injury complained of; but there is no reason to think that, under the instructions and the evidence, the jury allowed any sum of damages beyond that which the plaintiff was entitled to recover on this ground.

Finding no error in the record, the judgment of the lower court is affirmed.  