Graham v. Chi. & N. W. Ry. Co.

• Decision Date: 20 February 1909
• Docket Number: No. 26,358.,26,358.
• Citation: 119 N.W. 708,143 Iowa 604
• Parties: GRAHAM v. CHICAGO & N. W. RY. CO.
• Court: Iowa Supreme Court

143 Iowa 604

119 N.W. 708

GRAHAM

v.CHICAGO & N. W. RY. CO.

No. 26,358.

Supreme Court of Iowa.

Feb. 20, 1909.

Appeal from District Court, Monroe County; D. M. Anderson, Judge.

This is an action for personal injuries. Verdict and judgment for the plaintiff. Defendant appeals. Reversed.J. C. Mabry, A. A. McLaughlin, and James C. Davis, for appellant.

Chester W. Whitmore and N. E. Kendall, for appellee.

EVANS, C. J.

The plaintiff brings this action as administrator of the estate of his son, Roy Graham, who was accidentally killed in Illinois on September 17, 1901. On the date named the decedent was in the city of Chicago. He was in the company of two young men named Hooyer and Newgren, who figure as witnesses in the case. The age of the decedent was 20 years and 10 months, that of Newgren was 22 years, and that of Hooyer was 19 years. On the evening of the date named they approached the depot of the defendant railway company at one of the Chicago stations known as “Oakley Avenue,” from the south; the depot at such station being on the north side of the tracks. As they approached, one of the overland limited trains of the railway company was just moving out of the station. It was a vestibuled train, consisting of a locomotive and eight coaches in the following order from the locomotive: Combination, three sleepers, dining car, two chair cars, tourist car. The passengers from this station were taken on from the north side of the train, and no vestibules were open on the south side of the train. Graham proposed that they board the moving train. His companions hesitated, but he, acting at once upon his own suggestion, jumped abroad by grasping the handles of the vestibule and placing his feet upon the lower step protruding underneath. Thereupon the other two followed his example; Hooyer taking position at the rear end of one car, and Newgren at the front end of the next car to its rear. In this position Hooyer and Newgren were side by side. It is uncertain from the evidence which car Graham boarded. Both Hooyer and Newgren express the opinion that it was the third or fourth car from the locomotive; but Newgren testified that there were two or three cars between Graham and the other two, while Hooyer testified that Graham was upon the front end of the same car on which he was. Inasmuch as the plaintiff's case must stand or fall upon the testimony of Hooyer, we will discuss the same in accordance with Hooyer's testimony. The extreme danger of their position became apparent to Hooyer and Newgren, and they made frantic efforts to attract attention to their danger so that they might be rescued therefrom. The first person who went through the vestibule, a passenger, failed to observe them, although they were then beating upon the glass door of the vestibule. A little later the negro porter of the tourist car passed through, and his attention was attracted. He passed into the car for a moment and returned with the brakeman, Wright, who immediately opened the door and rescued them. As to what was said between these parties and Wright, and between them and the conductor, we shall set forth in detail later on. In pursuance of information given by them to Wright, Wright went with them forward through the train until they met the conductor, who went with them to the forward part of the car upon which he was and opened the vestibule door in search of Graham. He was not there. The conductor took a position on the open steps of the vestibule and looked up and down the train to ascertain whether he might be clinging to any other vestibule, but he could not be seen upon any part of the train. The train left Oakley Station on time at 6:38 p. m. One mile and one block west of the station on the defendant's railway was Kedzie avenue viaduct. The width of this viaduct was such that it left a clearance of only 16 and a fraction inches between the inner wall and the vestibule door. The body of Graham was found upon the railway track, greatly mangled, a short distance west of this viaduct.

The theory of the plaintiff is that he was brushed off by the walls of the viaduct, and that his mangled body was afterwards dragged by the train to a point west of the viaduct, where it was found. Under the evidence there can be no doubt of the correctness of this theory. The speed of the train was estimated by Hooyer at 15 miles an hour, and by all other witnesses at 25 miles an hour. Plaintiff's case is based upon the alleged negligence of the brakeman, Wright, in failing to act as promptly as he ought to have done after receiving information of the peril of Graham. It was incumbent, of course, upon plaintiff to prove not only that Wright could have acted more promptly than he did, but to prove also that such promptness would have rescued Graham before the train reached the viaduct in question. It was therefore vital to his case to prove that the rescue of Hooyer and Newgren had taken place before the train reached the viaduct, and not only that, but that sufficient time still remained to have enabled Wright, with reasonable promptness, to have rescued Graham before the train reached the viaduct. This element of the case rests solely upon the testimony of Hooyer. There was a former trial of the case. At that trial, also, this element of plaintiff's case rested upon the testimony of Hooyer alone. Upon this point, the plaintiff at that trial relied wholly upon circumstantial evidence and upon the opinions expressed by the witness Hooyer as to lapse of time and speed of train. That trial resulted in judgment for plaintiff, from which an appeal was prosecuted to this court. On hearing here, the judgment below was reversed on two grounds, namely: (1) That no negligence was proved against brakeman Wright; (2) that it appeared from the evidence that Graham had come to his death before information had come to the trainmen. At the close of all the evidence on the second trial, the defendant moved for a directed verdict, on the ground that the former opinion of this court was the law of the case, and that there was no sufficient change in the evidence to warrant the lower court in reaching a different conclusion from that arrived at by this court on the first appeal. This motion was denied by the lower court. There was a change in the evidence. The principal change, and the only one of importance, was the change of the testimony of the witness Hooyer. The defendant charges that the new testimony of this witness was in direct contradiction to his former testimony, and that it renders his present testimony inconsistent, and that it is so manifestly untrue that it should be disregarded by the court, and that the case should still be ruled by the former opinion of this court. On behalf of the plaintiff it is contended that the changed testimony is not contradictory nor inconsistent with his former testimony, nor inconsistent with his testimony as a whole at the present time. In the state of the record we think this question is practically conclusive of the case, and we direct our first attention to it.

1. The following is a part of Hooyer's cross-examination on the first trial: “Q. What was the conversation you had with the brakeman there? A. He said, ‘What are you doing out there?’ I said, ‘We got on at Oakley avenue.’ He said, ‘Where is your tickets?’ I told him my friend on the other end of the coach, in the same position we were in on the outside, had them. He said, ‘Oh, that is an old gag.’ Q. Now you and Mr. Newgren had no tickets? A. No, sir. Q. You were taken in from the outside of the car? A. Yes, sir. Q. The brakeman evidently didn't believe your story? A. I do not know. Q. We will say so, he said, ‘That was an old gag?’ A. Yes, sir. Q. Then what did you do? A. He said then, ‘We will go and see about it.’ Q. You started out and went to the end of the car? A. Yes, sir. Q. Toward the place where you thought Mr. Graham was? A. Yes, sir. Q. When you got to the middle of the car you met the conductor. A. Yes, sir; when we got to the middle of the car we met the conductor. Q. The brakeman explained the situation to the conductor? A. Yes, sir. Q. Told the conductor that you two boys had been taken off of the outside of the car? A. Exactly. Q. Then you claimed that some one was on ahead? A. Yes, sir. Q. The conductor said, ‘We will go and see about it?’ A. Yes, sir. Q. The conductor went up with you to the front end of the car? A. Yes, sir. Q. The conductor did that without delay? A. Yes, sir. Q. But when you got there you found your friend was not there? A. Yes, sir. Q. The conductor went at once as soon as he was told? A. Yes, sir. Q. I say, as soon as the conductor heard it he went at once to see whether your friend was on the front of that train or not? A. Yes, sir. Q. You saw that Mr. Graham was not on the train? A. Yes, sir.”

On his examination in chief at the same trial he testified as follows: “Q. After you started forward in the car with the brakeman, what happened? A. About one-half way in the car we met the conductor. The conductor said, ‘Tickets, Tickets.’ Then the brakeman explained to him. He said, ‘Well, we will go and see about it,’ and then we went right to the other end of the coach, and he reached down and opened the door, and there was nobody there. Q. What conversation, if any, did you have with the conductor at the time you and the brakeman went out there? Explain what was said by the brakeman and what the conductor said about it. A. The conductor asked for the tickets, and the brakeman explained to him that he said, ‘He got on at Oakley avenue, on the outside of the rear of the coach and hung outside, and when he got in he said his friend was on the other end with the tickets.’ The conductor turned around and said, ‘Well, we will go and see about it.’ He went out to the other door and opened the door, and there was nobody there.”

On the last trial the witness testified about his conversation with brakeman Wright...