Coine v. Chicago & N.W.R. Co.

• Decision Date: 07 April 1904
• Citation: 99 N.W. 134,123 Iowa 458
• Parties: M. O. COINE v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

99 N.W. 134

123 Iowa 458

M. O. COINE v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

April 7, 1904

Appeal from Boone District Court.--HON. J. R. WHITAKER, Judge.

ACTION to recover damages for being ejected from a passenger train on defendant's railroad. Verdict for $ 100. Defendant appeals.

Affirmed.

James C. Davis and A. A. McLaughlin for appellant.

D. G Baker for appellee.

OPINION

MCCLAIN, J.

The facts which the evidence tended to show, so far as they are material to a discussion of the questions argued, were substantially as follows: That plaintiff purchased from defendant's agent in Chicago a ticket for transportation from Chicago to Colo, Iowa, and was carried on that ticket on defendant's passenger train, to the town of Norway, a station on defendant's road east of Colo, where he was required by the conductor to leave the train on the ground that he had no ticket and was not entitled to transportation, although, as a matter of fact, his ticket, entitling him to transportation to Colo, had been regularly taken up by the conductor soon after the train left Clinton. No question is made in argument as to plaintiff's right to be transported to Colo, nor as to the fact that the conductor acted wrongfully in requiring plaintiff to leave the train at Norway, so that the contention is not as to plaintiff's right to recover, but as to the introduction of evidence and the giving of instructions which may have improperly influenced the jury in determining the amount of damages which should be allowed.

I. Several errors are assigned with reference to the admission of improper testimony. It is urged that plaintiff was improperly allowed, over defendant's objection, to relate a conversation with the agent of defendant from whom plaintiff purchased his ticket. It is difficult to see how this evidence could be in any way material under the issues on which the case was tried, for it was practically admitted on the trial that plaintiff was a passenger on defendant's train, entitled to transportation to Colo. However, as all the allegations of the petition were denied by defendant's answer, and it was incumbent on plaintiff to show that he had a right to be transported on the train, it was proper to introduce in evidence on his behalf, as was done, a receipt given by the Chicago agent to plaintiff when he purchased his ticket; and, as explanatory of the fact of issuing this receipt, it was, perhaps, not improper to state the circumstances under which it was issued, and the reason which led the plaintiff to insist upon such receipt. Without holding, however, that the evidence was admissible, it is sufficient to say that it could not have been prejudicial. We cannot believe that, under the instructions which the court gave as to the issues presented to the jury, any weight could have been given by the jury to this evidence.

Nor do we think any prejudice resulted to the defendant in allowing plaintiff to testify that he purchased a ticket to Colo. An ordinary passenger ticket is not necessarily a contract, within the scope of the rule excluding oral evidence of the contents of a written instrument; and, even if it were, the witness did not attempt to state its contents.

Plaintiff was allowed to testify, over defendant's objection, that he stayed in the depot at Norway all night because he could not get a place to stay elsewhere; but, if the admission of this evidence was erroneous, the error was cured by an instruction to the effect that all evidence in relation to plaintiff's not being able to obtain lodging at Norway was withdrawn from the consideration of the jury, and that they should not allow plaintiff any damages for staying in the depot building at Norway during the night. Counsel urge that the admission of this evidence was so serious an error that it could not be cured by an instruction to the jury to disregard it, but we do not take this view. All the circumstances had been related to the jury, and it plainly appeared that plaintiff stayed in the depot because he was unable to secure accommodations at the hotel. There was nothing to indicate that he suffered any physical injury or mental distress on this account, and we are not willing to assume that the jury so far ignored the explanation and the instructions given by the judge as to take the fact into account as increasing the damages allowed to the plaintiff.

Plaintiff was allowed to testify, over defendant's objection, that he was without money when he left the train at Norway, and that he was compelled to wait there until banking hours before he could secure money for the purpose of continuing his journey to Colo. As he did in fact continue his journey, and reach Colo with a delay of less than a day we can hardly see how this evidence could have been in any way...