Bettis v. Chi., R. I. & P. Ry. Co.

• Decision Date: 12 June 1906
• Citation: 108 N.W. 103,131 Iowa 46
• Parties: BETTIS v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

131 Iowa 46

108 N.W. 103

BETTIS

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

June 12, 1906.

Appeal from District Court, Wayne County; H. M. Towner, Judge.

Action to recover damages for personal injuries alleged to have been suffered by plaintiff as the result of being thrown or pushed from the platform of a moving passenger train of the defendant by a brakeman in defendant's employ. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Carroll Wright, J. L. Parrish, and Miles & Steele, for appellant.

R. C. Poston and Freeland & Carter, for appellee.

McCLAIN, C. J.

On a former trial of this case a judgment for plaintiff on a verdict for $2,500 damages was reversed on account of errors in an instruction. See 124 Iowa, 623, 100 N. W. 543. In the trial, resulting in a verdict for plaintiff for $2,580 and judgment thereon, from which this appeal is taken, the evidence was, so far as it bears on the questions of law, presented substantially the same as on the former trial. The grounds now relied upon for reversal are (1) misconduct of counsel for plaintiff in their arguments to the jury; (2) errors in one of the instructions given to the jury; and (3) insufficiency of evidence to support the verdict.

1. The alleged misconduct of counsel consisted in referring to the failure of defendant to produce a witness who might have testified to a material fact, and the inequality of the contest between plaintiff, dependent upon his earnings from manual labor, and defendant, a wealthy corporation. As to the failure to produce the witness we cannot see that any prejudice could have resulted from what was said by counsel. The question as to which the testimony of the witness not called would have been material was whether plaintiff had paid his fare. Plaintiff testified that he paid his fare to a brakeman who was assisting the conductor in taking up tickets on a crowded excursion train. This brakeman was not a witness. The conductor and the other brakeman each testified that no fare was paid or ticket surrendered by plaintiff to him. But there was no necessary conflict between the testimony of plaintiff that he paid his fare to the brakeman who was not called as a witness and that of defendant's witnesses, and we cannot see that any prejudice affecting the result could have arisen from the reference by counsel to the failure of defendant to introduce such brakeman as a witness. It was not contended that plaintiff was ejected on the ground that he had not paid his fare. The reference to disparity in financial condition between plaintiff and defendant was improper but on objection by defendant's counsel the court promptly stopped plaintiff's counsel and directed the jury not to pay any attention to such statements or allow them to prejudice the defendant. In the absence of any indication in the record that counsel acted willfully or in disregard of the admonition of the court not to pursue that line of argument, or that the jury failed to ignore the improper argument in accordance with the court's direction we see no occasion to interfere. Mackerall v. Omaha & St. L. R. Co., 111 Iowa, 547, 82 N. W. 975. We should not, under such circumstances, reverse the ruling of the court, announced on motion for new trial, that the misconduct of counsel was not prejudicial.

2. Complaint is made of one portion of an instruction in which the court told the jury that “if the jury find from the evidence that the said injury is permanent, that prior to the said injury the...