Benton v. C. R. I. & P. R. Co.

• Decision Date: 24 March 1881
• Citation: 8 N.W. 330,55 Iowa 496
• Parties: BENTON v. THE C. R. I. & P. R. CO
• Court: Iowa Supreme Court

8 N.W. 330

55 Iowa 496

BENTON v. THE C. R. I. & P. R. CO

Supreme Court of Iowa, Des Moines

March 24, 1881

Appeal from Poweshiek Circuit Court.

THE plaintiff is a widow, and the surviving parent of one Silas Benton, who was killed by being run over by one of the defendant's trains. The deceased at the time of his death was about eleven years of age. The evidence shows that he with several other boys of about his age, entered an empty freight car which constituted one of a train which had been made up at the town of Brooklyn. The train when the boys entered the car was about ready to start. Their object in entering the car appears to have been, as one of the boys expressed it, "to steal a ride to Victor." Soon after they entered the car they were discovered by the conductor, who ordered them out. As to what, precisely, he said in giving the order there is some conflict in the evidence, but there was evidence tending to show that the order was a rough one. There was some conflict in the evidence as to whether at the time he gave the order the train was in motion, but we think it tended strongly to show that it was. The only means of escape from the car was a window in the end. It does not appear that the car had a platform, and the deceased in attempting to crawl out through the window and jump to the ground lost his hold and fell upon the track, and was run over and killed. The plaintiff avers that the defendant was negligent in compelling the deceased to leave the car while the train was in motion. She brings this action as his surviving parent to recover for loss of his services.

The defendant denies all negligence upon its part, and avers that the accident occurred through the negligence of the deceased. There was a trial by jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

REVERSED.

H. S Winslow and Matt Phelps, for appellant.

No appearance for appellee.

ADAMS CH. J. Mr. Justice SEEVERS concur.

OPINION

ADAMS, CH. J.

I. The defendant assigns as error the admission of certain evidence. A witness was allowed to testify, against the objection of the defendant, that the plaintiff was not in good health. The plaintiff's object, of course, in introducing this evidence was to enhance the amount of her recovery, but we think it was not admissible, for that or any other purpose. She was entitled to recover, if she could recover at all, to the extent of her pecuniary loss, and that only. It would be too much to presume that the earnings of the deceased would have been greater because his mother was not in good health. In Simonson, Adm'x, v. C. R. I. & P. R. Co., 49 Iowa 87, an action brought to recover for damages to the estate of deceased, it was held that evidence was not improperly admitted tending to show that the deceased was dependent upon his earnings. It had been shown that the deceased had already formed habits of industry, and it was thought the jury was entitled to consider his dependent condition in estimating the probable continuance of his habits. But it would be going too far to hold that the evidence as to the plaintiff's health in the case at bar was admissible upon any such ground.

II. The court gave an instruction as follows: "Before the plaintiff can recover she must have satisfied you by a preponderance of the testimony that her minor son was injured by a train on the defendant's road, and that such injury was in consequence of the neglect of the agents or employes of the defendant, or their willful wrongs." The defendant complains that the instruction presents an issue to the jury which does not exist in the case.

There is certainly neither averment nor proof that the defendant had the slightest intention of injuring the deceased. The plaintiff's claim rests solely upon the defendant's negligence. A suggestion in the instruction that there was an issue in regard to the defendant's willful wrong was possibly not without prejudice, and the instruction, it appears to us, is objectionable upon that ground. It was the defendant's right that the jury should be restricted to the issues upon which the case had been tried. DeCamp v. M. & M. R. Co., 12 Iowa 348; Cooke v. Ill. Cent. R. Co., 30 Iowa 202; Brink v. Morton et al., 2 Iowa 411.

III. The court gave an instruction in these words: "In considering the question whether the deceased was guilty of negligence which contributed to his injury, you should take into consideration all the circumstances--the age of the decedent, his knowledge of the manner of operating and making up the trains; whether or not the train was in motion, and if in motion the rate of speed at which it was moving; whether the decedent knew that the train had not started to leave the station, and would stop at the switch, where he would have an opportunity to get off in safety; the construction of the car, and the facilities for and danger of getting off while the train was in motion, as well as all the circumstances."

The defendant complains of the instruction because, while it enumerates many circumstances which the jury was entitled to consider in determining whether the deceased was guilty of contributory negligence, it does not expressly mention the circumstance that the deceased was a trespasser. The defendant places great stress upon this circumstance, and contends that if the instruction was not directly calculated to divert the attention of the jury from it, it did not give it due importance, and was for that reason objectionable.

As the instruction directed the jury to consider all the circumstances, we are not prepared to say that it could be held to be erroneous, even if the circumstance that the deceased was a trespasser were as important as the defendant contends that it is. But in the view which we take of the case that circumstance was not of great importance. The deceased at the time he was discovered in the empty freight car does...