Johnson v. Chi., R. I. & P. R. Co.

• Decision Date: 25 April 1879
• Citation: 51 Iowa 25,50 N.W. 543
• Court: Iowa Supreme Court
• Parties: JOHNSON v. CHICAGO, R. I. & P. R. CO.

51 Iowa 25

50 N.W. 543

JOHNSON

v.CHICAGO, R. I. & P. R. CO.¹

Supreme Court of Iowa.

April 25, 1879.

Appeal from district court, Wapello county. Reversed.

The plaintiff alleged that he purchased of the defendant's agent at Fairfield a tioket to Eldon, on the line of defendant's road; that he took defendant's train, expecting to make connection at Eldon with a train going east on the Keokuk & Des Moines Railroad; that upon his arrival at Eldon he was too late to make the connection desired, and that he repaired to defendant's waiting-room to await the arrival of a train on said Keokuk & Des Moines Railroad, said waiting-room being open for the accommodation of passengers; that while awaiting said train one E. A. Stone, the ticket agent of defendant at Eldon, and in charge of the station, ordered plaintiff out of the depot, and because he hesitated in going, and told him he was waiting for a train, said Stone struck plaintiff with a club, or some other instrument, and threw him out of said depot, breaking plaintiff's shoulder and collar-bone, and inflicting on him great and permanent injuries, from which he has not and never will recover; that plaintiff was conducting himself in a becoming manner, and did nothing to contribute to his injury; and that by said injuries by him received, through the negligence, carelessness, and wrong of said agent, he has been damaged, in pain of body and mind and inability to earn a living, in the sum of $10,000; that defendant was informed of the wrong done plaintiff by said agent, and still keeps him in its employ, thus ratifying and approving his acts. There was an answer denying generally the allegations of the petition. There was a trial by jury. A verdict was returned for the plaintiff for $2,000, upon which a judgment was rendered. Defendant appeals.Stiles & Burton, for appellant.

W. H. C. Jacques and Wm. McNett, for appellee.

ROTHROCK, J.

1. We have been furnished with three abstracts in this case: First, we have the abstract prepared by appellant; next, the additional abstract of appellee; and, lastly, an additional abstract by appellant, which was filed with the argument in reply after the cause was submitted. This additional abstract is not entitled to consideration, excepting so far as it controverts the correctness of appellee's abstract. To allow an appellant to file an abstract of evidence with his argument in reply, in addition to a violation of the rules of practice, would give him such an advantage in the submission of the cause as cannot be allowed.

2. That the plaintiff was considerably injured in some way admits of no question; all the evidence tends to show that fact. That he was removed from the waiting-room in the depot by Stone, the defendant's agent, is also conclusively shown. It is alleged in the petition that Stone struck the plaintiff with a club or some other instrument, and threw him out of the depot, breaking plaintiff's shoulder and collar-bone. In his examination in chief plaintiff stated that Stone struck him with a stick, and that it made a black spot on him. In his cross examination he stated: “I don't know whether he struck me with the stick or his hand.” No witness stated that plaintiff was struck with anything. Four witnesses for the defendant testified, in substance, that the plaintiff was not struck by Stone, nor by any one, and that he was removed from the waiting-room, after being requested to leave, because he was disorderly, drunk, and profane, and that no more force was used than was necessary to effect his removal. It was therefore an important question in the case to determine in what manner and by whose hands the injury upon the plaintiff was inflicted. The plaintiff took the deposition of Dr. R. J. Mohr, the physician who attended him for the injury. In his examination in chief he described the injury, and the extent thereof, and his manner of treatment. In cross-examination he was asked these questions: “State what he said as to how he received his injury. (Objected to because not confined to any conversation inquired about by plaintiff.) Answer. I think, as I understood him, he was down at Eldon waiting for a train, when some rowdies or roughs pushed him off the platform, and pushed him down, and he fell on his shoulder, which produced the injury. That is the way I understood it at the time. State if anything was said as to its being done by parties whom he thought were going to rob him. If so, what? (Same objection as before.) A. Well, that's the impression I have; that's the understanding I had from the conversation at the time.” This deposition was filed in the clerk's office on the 26th day of January, 1877. At the January term, 1878, after the case was called for trial, the plaintiff filed a motion to suppress the above cross-examination, for the same reasons as set out in the deposition....