Johnson v. Chicago, St. P., M. & O.R. Co.

• Decision Date: 20 February 1904
• Citation: 98 N.W. 642,123 Iowa 224
• Parties: JOSEPH JOHNSON, Appellee, v. THE CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

98 N.W. 642

123 Iowa 224

JOSEPH JOHNSON, Appellee, v. THE CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 20, 1904

Appeal from Woodbury District Court.--HON. JOHN F. OLIVER, Judge.

ACTION at law to recover damages for personal injuries received by plaintiff in being pushed or kicked from one of defendant's trains. The case was tried to a jury resulting in a verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

Thomas Wilson and Wright & Call for appellant.

Hallam & Munger for appellee.

OPINION

DEEMER, C. J.

This is the second time the case has been before us. The first opinion will be found in 116 Iowa 639. On the former trial a verdict was directed for the defendant at the close of plaintiff's evidence. When the case was retried, the entire evidence was taken, and the jury found a verdict for plaintiff, as indicated above.

I. Appellant first contends that the verdict is without support in the evidence. This is based upon the proposition, not that there is no evidence to support it, but upon the I. VERDICT thought that four witnesses on the part of the defendant as to how the accident occurred are entitled to more weight than plaintiff, who, it is asserted, was a "wandering tramp." Manifestly, this was a question for the jury, unless we are to say that an appellant tribunal must, in a law case, weigh evidence, and determine for itself where the preponderance lies. This it manifestly cannot do, without assuming a function not given it by law. Under our system, a jury must determine the facts, and, if there be any substantial support for its finding, an appellate tribunal should not interfere.

II. Next it is said that the verdict is contrary to the instructions, in that the jury was told that plaintiff could not recover unless he showed that he was evicted from the train under such circumstances as to endanger life or limb, and that the evidence conclusively shows that he was not so evicted. This was manifestly a question for the jury. The evidence is in conflict as to the speed of the train when plaintiff was put off, and it was a question of fact, rather than of law, as to whether the eviction was made under such circumstances as to endanger life or limb. Some of the evidence tended to show that when plaintiff was evicted the train was moving faster than a man could run, and it was for the jury to say whether or not an eviction under such circumstances was calculated to endanger life.

III. The negligence charged in the petition was "that said injury was caused to plaintiff solely by reason and on account of the careless and negligent conduct of the brakeman in forcibly kicking, thrusting, and hurling him from said car when the same was running at a very high rate of speed." In answer to special interrogatories, the jury found that defendant was guilty of the negligence charged and complained of, and that it was not due to plaintiff's efforts to reboard the train, after he had been ejected. During the trial, defendant offered to prove the following: First. That at the time of plaintiff's injury, and for a long time continuously theretofore, a large number of persons, commonly known as "tramps" or "hobos," were accustomed to trespass upon the freight trains on which this witness was employed, for the purpose of stealing rides from place to place; that they were accustomed to enter upon and leave said trains while the same were moving rapidly, and were also accustomed, when ordered or required so to do, to cease trespassing upon said trains by jumping from the ladders on the sides of the box cars, when the trains were moving more rapidly than the highest rate of speed the train under which plaintiff was injured acquired after leaving South Sioux City, up to and including the time of the accident. Second. That, at the time of plaintiff's injury, his general appearance and conduct led this witness to believe, and he did believe, prior to the injury, that plaintiff was one of the class of persons commonly known as "tramps" or "hobos," and that he could with safety get upon and alight from the ladders on the sides of box cars in trains moving faster than the train in question moved at the time plaintiff was last required by this witness to leave the same. Third. That this witness never at any time intended to injure plaintiff. Objection thereto was sustained, and of this complaint is made. Defendant's witnesses were permitted to describe the appearance, actions, and conduct of the plaintiff at all times material to the inquiry; and it was entirely immaterial to show the custom and habits of other people, as to what defendant's employes thought and believed concerning the plaintiff, or as to what they intended or did not intend to do. Their conduct must be measured by what the evidence shows they did, and it was for the jury to say, under all the evidence, as to whether or not defendant's agents were guilty of the negligence charged. Of course, they had the right to describe plaintiff's appearance, conduct, and demeanor, and this they did. But their conduct as to him must be viewed from this standpoint, rather than from what other persons may have done or failed to do. It was no defense to show that they did not intend to injure the plaintiff, or that the employes thought plaintiff could be forcibly ejected from the train at the time they did. This was wholly for the jury. Human life cannot be jeopardized simply because the party charged believed that the injured one belonged to a certain class, and that he could, by reason of that fact, be safely ejected at a time and place where such ejection would ordinarily be dangerous to life and limb. If they assume to do so, they act at their peril. Ordinarily the law looks to the average, the ordinary, the ideal average man--the man possessed of those traits and habits possessed...