Collins v. Wells, Fargo & Co. Express
| Citation | 118 N.W. 401,140 Iowa 304 |
| Parties | ANNA COLLINS, Appellant, v. WELLS, FARGO & COMPANY, EXPRESS, Appellee |
| Decision Date | 23 November 1908 |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. W. H. MCHENRY, Judge.
ACTION for damages for alleged personal injuries resulting from collision with one of defendant's express wagons. Judgment for the defendant on a directed verdict. Plaintiff appeals.
Reversed.
Gillespie & Bannister, for appellant.
Read & Read, for appellee.
The evidence offered on behalf of plaintiff tends to prove the following facts: That on the 10th of May, 1906, she and her daughter, Mrs. McNeal, were driving in a single buggy eastward on Walnut Street in Des Moines. At a point between First and Second Streets they were overtaken by an express wagon, which was driving rapidly, and which drove into and collided with the plaintiff's buggy by running its wheel between the front and hind wheel of plaintiff's buggy and pushing it against a dray wagon then driving on the right-hand side of plaintiff's buggy. The collision with the dray wagon broke the right front wheel of plaintiff's buggy. As a result plaintiff was thrown out and severely injured. Both the plaintiff and her daughter testified unequivocally to the foregoing matters. They also testified that the express wagon in question was a Wells Fargo express wagon. On cross-examination, however, the plaintiff admitted that she did not see the wagon, but made the statement from information received. Likewise Mrs. McNeal admitted on cross-examination that she did not personally identify the express wagon as a Wells Fargo express. She contended, in substance, that she believed it to be such, and that she called up the Wells Fargo office by telephone, and was informed over the telephone from such office that the wagon in question was one of their wagons, and that they had sent a physician to attend to the plaintiff. She was not able however, to identify the person who made such communication. Thereupon the plaintiff called to the witness stand W. P. Murphy, who was examined by the plaintiff solely upon the question of the identity or ownership of the express wagon. His evidence in chief is as follows: Over the repeated objections of the plaintiff the court permitted the defendant to extend its cross-examination beyond the question of identity or ownership, and permitted the witness to give his version of the accident, which was in contradiction of that of the plaintiff in some material respects. The substance of the contention of this witness, as disclosed by the cross-examination, was that he did not drive against the plaintiff's buggy, but that she drove her buggy against his wagon; and that at the time of the accident, he was not behind her, but that she was a "little back" of him. The following is a part of his testimony on cross-examination: Upon the testimony of these three witnesses and that of the physician the plaintiff rested her case. The trial judge, upon defendant's motion, directed a verdict for the defendant, and gave the following reasons therefor:
The Court: The plaintiff's theory in this case is that the defendant's wagon came behind her, and struck her...
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