Fitzgibbon v. Chi. & N. W. Ry. Co.
| Decision Date | 28 January 1903 |
| Citation | 93 N.W. 276,119 Iowa 261 |
| Parties | FITZGIBBON v. CHICAGO & N. W. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Monona county; F. R. Gaynor, Judge.
This is an appeal from a second judgment for plaintiff in an action to recover damages for personal injuries received by plaintiff while a passenger on defendant's train. The facts are sufficiently set out in the opinion on a former appeal. Affirmed.
Hubbard, Dawley & Wheeler, for appellant.
M. F. Harrington and Frank Tamisiea, for appellee.
The case was retried on the issues which were involved in the former appeal, and the principal question now before us is whether there was evidence to support a verdict for the plaintiff on those issues, in view of the law of the case as then established. The question of fact on which the case has been made to hang is whether plaintiff was a passenger. The evidence on this question is substantially the same as contained in the record on the former appeal, save that plaintiff on the second trial testified to a more definite recognition of him by the conductor as an acquaintance than was shown on the first trial. Counsel for defendant now argue that, if plaintiff knew the train to be a special train, he knew that the conductor had no authority to allow him to ride thereon; and also that he expressly avoided asking the conductor whether or not he could ride, well knowing that permission would be refused if asked. The first of these points is ruled against the defendant by the opinion on the former appeal, wherein it is held that, “even if the train was not made up for the carriage of passengers in general, the defendant, through its conductor, had the right to accept such [other] passengers, and, if the conductor did accept the plaintiff as such passenger, he will be treated as such, in the absence of notice or knowledge on his part of any limitations upon the conductor's authority.” The evidence as to whether plaintiff did have notice of limitation of the conductor's authority, or did know that he would not be accepted if he asked permission to ride, was peculiarly for the jury. There is no such lack of evidence in support of plaintiff's claim as to justify our interference. The evidence tended to show that plaintiff desired transportation on this special train, and that he went upon the train with the assent of the conductor, who was aware that he expected to be transported thereon as a...
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