Kelly v. Muscatine, B. & S. R. Co., No. 34781.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtDE GRAFF
Citation195 Iowa 17,191 N.W. 525
Decision Date16 January 1923
Docket NumberNo. 34781.
PartiesKELLY v. MUSCATINE, B. & S. R. CO.

195 Iowa 17
191 N.W. 525

KELLY
v.
MUSCATINE, B. & S. R. CO.

No. 34781.

Supreme Court of Iowa.

Jan. 16, 1923.


Appeal from District Court, Louisa County; James D. Smyth, Judge.

Action to recover damages for personal injuries caused by the derailment and burning of an interurban motor car upon which the plaintiff was a passenger. Cause tried to a jury resulting in a verdict for the plaintiff in the sum of $60,000. The trial court reduced the amount of the verdict to $40,000, which the plaintiff elected to take in lieu of a new trial. Judgment was entered accordingly, and defendant appeals. Affirmed on condition.

Stevens, J., dissenting.

[191 N.W. 526]

Hoffman & Hoffman and E. M. Warner, all of Muscatine, for appellant.

R. P. Howell and F. F. Messer, both of Iowa City, for appellee.


DE GRAFF, J.

This is an action to recover for personal injuries received by the plaintiff while a passenger on a motor car of the defendant railway company. The defendant, in addition to steam trains for freight traffic, operated interurban gasoline motor cars for the carriage of passengers.

Plaintiff purchased a ticket at Muscatine, and his destination was Wapello, Iowa. At a point about four miles from Muscatine at 6 o'clock p. m. December 4, 1919, the car in which plaintiff was riding left the rails, overturned, and completely burned, causing very severe injuries to plaintiff. The car was lighted by electricity and heated chiefly by means of a kerosene stove, which was not fastened to the car but could be moved about as weather conditions or the comfort of the passengers might require. The stove at the time of the accident was in the front end of the car. A gasoline tank of 22 gallons' capacity was also in front and on the left side of the car and inclosed in a boxlike structure.

Plaintiff's petition contains the following allegations of negligence: (1) That the roadbed of defendant's line was not in proper condition; (2) that the car was being operated at a high and dangerous rate of speed; (3) that near the point of the accident there was a broken rail which caused the car to leave the track, and that the defendant, though having timely notice of the broken rail, had failed to repair or replace the same; (4) that the crew in charge of the car at the time of the accident was not a regular crew, and that they did not slow down at the place of the broken rail and drove at a rapid and dangerous rate of speed over the broken rail, thereby causing the car to leave the track; (5) that the defendant was negligent in the properly equipping said car and in allowing a green crew to handle same; (6) that the defendant was negligent in having the coal oil heater at the front end of the car not properly equipped to prevent fire in case of accident; (7) that the defendant made no effort to rescue passengers after the car was on fire.

The defendant in answer denied that the accident and injury to the plaintiff was caused by its negligence or the negligence of its agents or employees, and admitted that it is a corporation engaged in operating a railroad as charged by plaintiff, that it was a public carrier of passengers for hire, and that one of its cars at the time and place as alleged left the track and was burned, and that plaintiff was injured, but to what extent the defendant did not know.

The primary errors relied upon by appellant for reversal are: (1) The admission of certain evidence; (2) the giving of certain instructions which submitted to the jury issues not made by the pleadings or supported by the evidence; (3) failure to submit in proper instruction the defendant's theory of the case; (4) that the verdict was the result of passion and prejudice and that the error was not cured by causing the plaintiff to file a remittitur in the sum of $20,000.

I. The first point has to do with certain questions and answers under objections of defendant as found in the testimony given by plaintiff's witness P. W. Keefover. This witness at the time of the accident was the storekeeper and extra conductor in the employ of the defendant. He was...

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18 practice notes
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...is set forth in a given “count,” there is no place therein for general assertions. Kelly v. Muscatine B. & S. R. Co., 195 Iowa, 17, 191 N. W. 525. And, as hereafter seen, it is the latter only that make applicable “res ipsa loquitur.” Mistaken conception must have been made by the pleader w......
  • Pearson v. Butts, No. 44048.
    • United States
    • United States State Supreme Court of Iowa
    • November 23, 1937
    ...Iowa 309, 218 N.W. 340;Orr v. Des Moines Electric Light Co., 207 Iowa 1149, 222 N.W. 560;Kelly v. Muscatine, Burlington & Southern R. Co., 195 Iowa 17, 191 N.W. 525. A different rule applies, however, where the specific acts of negligence are alleged in one count, and general allegations un......
  • Pettijohn v. Weede, No. 42452.
    • United States
    • United States State Supreme Court of Iowa
    • December 26, 1934
    ...are alleged by the pleader, he thereby waives his allegations of general negligence. Kelly v. Muscatine, B. & S. Ry. Co., 195 Iowa, 17, 191 N. W. 525;Orr v. Des Moines Electric Light Co. (207 Iowa, 1149, 222 N. W. 560), supra. So, when the pleader alleges specific acts of negligence, he can......
  • Orr v. Des Moines Elec. Light Co., No. 38970.
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1928
    ...is set forth in a given count, there is no place for general assertions, citing Kelly v. Muscatine, B. & S. R. Co., 195 Iowa, 17, 191 N. W. 525. In the Whitmore Case it is said: “And, as hereafter seen, it is the latter only that makes applicable ‘res ipsa loquitur.’ ” Later in the same cas......
  • Request a trial to view additional results
18 cases
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...is set forth in a given “count,” there is no place therein for general assertions. Kelly v. Muscatine B. & S. R. Co., 195 Iowa, 17, 191 N. W. 525. And, as hereafter seen, it is the latter only that make applicable “res ipsa loquitur.” Mistaken conception must have been made by the pleader w......
  • Pearson v. Butts, No. 44048.
    • United States
    • United States State Supreme Court of Iowa
    • November 23, 1937
    ...Iowa 309, 218 N.W. 340;Orr v. Des Moines Electric Light Co., 207 Iowa 1149, 222 N.W. 560;Kelly v. Muscatine, Burlington & Southern R. Co., 195 Iowa 17, 191 N.W. 525. A different rule applies, however, where the specific acts of negligence are alleged in one count, and general allegations un......
  • Pettijohn v. Weede, No. 42452.
    • United States
    • United States State Supreme Court of Iowa
    • December 26, 1934
    ...are alleged by the pleader, he thereby waives his allegations of general negligence. Kelly v. Muscatine, B. & S. Ry. Co., 195 Iowa, 17, 191 N. W. 525;Orr v. Des Moines Electric Light Co. (207 Iowa, 1149, 222 N. W. 560), supra. So, when the pleader alleges specific acts of negligence, he can......
  • Orr v. Des Moines Elec. Light Co., No. 38970.
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1928
    ...is set forth in a given count, there is no place for general assertions, citing Kelly v. Muscatine, B. & S. R. Co., 195 Iowa, 17, 191 N. W. 525. In the Whitmore Case it is said: “And, as hereafter seen, it is the latter only that makes applicable ‘res ipsa loquitur.’ ” Later in the same cas......
  • Request a trial to view additional results

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