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

• Decision Date: 28 September 1909
• Citation: 122 N.W. 573,143 Iowa 604
• Parties: GRAHAM v. CHICAGO & N. W. RY. CO
• Court: Iowa Supreme Court

143 Iowa 604

122 N.W. 573

GRAHAM

v.CHICAGO & N. W. RY. CO

Supreme Court of Iowa.

Sept. 28, 1909.

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

Supplemental opinion on rehearing. Affirmed on plaintiff's cross-appeal and reversed on defendant's appeal.J. C. Mabry, A. A. McLaughlin, and J. C. Davis, for C. & N. W. Ry. Co.

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

EVANS, C. J.

The original opinion can be found in 119 N. W. 708. The plaintiff calls our attention to the fact that in such opinion we did not formally rule upon his cross-appeal. What we did say was necessarily determinative of the cross-appeal adversely to the plaintiff. The plaintiff urges upon us a reconsideration of our former opinion in so far as its conclusions are fatal to his cross-appeal. His argument is that upon the testimony of Newgren and Brundage and Wright alone, disregarding wholly the evidence of Hooyer, he was entitled to go to the jury on the theory that Graham was on the steps of the second or third car from the engine, and that Brundage saw him there. This is based (1) upon the testimony of Brundage that he and Wright went through the vestibules of the three sleepers, looking for trespassers, and discovered none; (2) upon the testimony of Newgren as to where he thought Graham was; and (3) upon the inference which the jury might draw that Brundage did see Graham on the second or third car from the engine, notwithstanding his denial. The testimony of Newgren upon which such reliance is placed is his following cross-examination: “Q. What car did you say Roy Graham boarded as the train pulled out of Oakley avenue? A. I think about the second or third car from the front, from the engine. Q. That would be the first or second sleeper on the train? A. I don't know how the train was made up. Q. If the train was organized with a buffet car and three sleepers, it would be the first or second sleeper that he got on? A. Yes, sir. Q. You are sure of that, are you? A. That is as near as I know. Q. You testify to that as a fact? A. Yes, sir. Q. And you are positive of that as you are of everything that you have testified to? A. Yes, sir. Q. That as you boarded the train that evening Roy Graham was on the second or third car from the engine? A. To the best of my judgment. Q. That would be the first or second sleeper in the train? A. Yes, sir.” Newgren had testified on direct examination, not only that Graham was on the second or third car from the engine, as he believed, but that there were three cars between him and Hooyer and Newgren. Hooyer's testimony was that there was one car only between them. This would put Graham on the front end of the seventh car of the train. Plaintiff's petition expressly alleged that Graham was on “the forward end of the seventh car from the head end in said train.” He never recededfrom that allegation. The allegation was supported by Hooyer's testimony and the case tried upon that theory. During the trial, however, and after the evidence had been heard, the plaintiff added to his petition an additional count wherein he alleged that Graham was on the second or third car, and that Brundage saw him there, and that Brundage was negligent in not attempting to rescue him. This count did not purport to withdraw or qualify any allegation contained in the former count. It was apparently intended to state an alternative case of negligence as a basis for recovery, so that, if he failed in his proofs upon the original count, he might still recover upon the additional count on the theory that Brundage was negligent. The two were inconsistent, and the establishment of one necessarily negatived the other.

Whether the plaintiff was entitled to have them both submitted to the jury in the alternative, or whether the court could and should have required him to elect, at the close of the evidence, upon which count he proposed to stand, we need not now determine. The court did withdraw from the consideration of the jury the charge of negligence made in the additional count against Brundage, and submitted the case as made by the original count of the petition. If the jury had found adversely to the plaintiff upon this count, he might be in a position to say that he was hurt by the refusal of the court to submit the other count, and that the jury might have returned a verdict in his favor upon that count. But the jury found in his favor upon the original count. The finding of the jury sustaining that charge of negligence was equivalent to a negative finding on the other. Both could not be true. In rendering a verdict for the plaintiff on the case as submitted to it by the instructions of the court the jury necessarily found that Graham was at the front end of the seventh car. They found, therefore, that he was not on the second or third car, Brundage, therefore, could not have been found guilty of negligence upon such finding, even though the court had submitted the issue of his negligence to the jury in the alternative.

Plaintiff argues on the theory that the jury had no chance to pass upon Newgren's tesimony in cross-examination, and that they might have found upon such testimony that Graham was on the second or...