O'Connor v. Chi., R. I. & P. Ry. Co.

• Decision Date: 20 October 1908
• Citation: 117 N.W. 979
• Court: Iowa Supreme Court
• Parties: O'CONNOR v. CHICAGO, R. I. & P. RY. CO.

117 N.W. 979

O'CONNOR

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

Supreme Court of Iowa.

Oct. 20, 1908.

Appeal from District Court, Scott County; James W. Bollinger, Judge.

Action for damages resulted in a verdict and judgment for plaintiff. The defendant appeals. Affirmed.Carroll Wright, J. L. Parrish, and Cook & Dodge, for appellant.

Lane & Waterman, for appellee.

LADD, C. J.

Through negligence of an employé of defendant, as was conceded in the answer, a baggage car in which plaintiff was engaged at his usual avocation was overturned, and he precipitated nearly the entire length of the car on his head, and articles in the car fell on him. The testimony of physicians as to his condition as a result of the injuries is in sharp conflict. If the witnesses called by plaintiff are to be relied on in connection with the evidence of himself and wife, he is in a most deplorable condition, and the amount for which judgment was rendered cannot be regarded as excessive. If the physicians of defendant are right in the opinions they have expressed, little else than hysteria ailed him. The issue raised by the record was fairly submitted to the jury, and we have discovered no ground for interference by this court.

2. The only matter submitted to the jury was the assessment of damages, and in stating the measure thereof the court, in effect, limited consideration of loss in future earning capacity to employment in the occupation of plaintiff previous to the injury. As there was no evidence tending to prove his ability to pursue or earn money in that or any other vocation, the instruction was correct. Bettis v. Railway, 131 Iowa, 46, 108 N. W. 311.

3. Subsequent to the beginning of the action, and within the statutory period, defendant filed a petition for removal to the United States Circuit Court. This was accompanied by a sufficient bond, and, after asserting that the amount in controversy exceeded $2,000, stated: “That the controversy in said action is between citizens of different states, and that your petitioner at the time of the commencement was, and still is, a citizen and resident of the state of Illinois. That the plaintiff was then, and still is, a resident of the state of Iowa. That your petitioner at the time of commencement of this action was, and still is, a corporation organized and existing under and created by the laws of the state of Illinois, and at said time and now has its citizenship, residence, habitat, and principal place of business in the city of Chicago, and state of Illinois, and was and is a nonresident of the state of Iowa.” Thereupon plaintiff filed a resistance in which he alleged that defendant had been incorporated under the laws of Iowa, and was at the commencement of the action and still continued to be a citizen of Iowa. To this was attached the articles of incorporation of the Chicago, Rock Island & Pacific Railroad Company, an Iowa corporation, and articles of consolidation with the Chicago, Rock Island Railroad Company, an Illinois corporation, all recorded in Scott county. The court denied the petition and rightly. To render an action removable to the federal court on the ground alleged diversity of citizenship must be made to appear to have existed both at the...