Larkin v. Chicago & Great Western Railway Co.

• Decision Date: 20 December 1902
• Citation: 92 N.W. 891,118 Iowa 652
• Parties: JAMES W. LARKIN, Appellee, v. CHICAGO & GREAT WESTERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

92 N.W. 891

118 Iowa 652

JAMES W. LARKIN, Appellee, v. CHICAGO & GREAT WESTERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

December 20, 1902

Appeal from Union District Court.--HON. W. H. TEDFORD, Judge.

ACTION at law to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed.

Cummins Hewitt & Wright and P. C. Winters for appellant.

J. G Bull for appellee.

OPINION

WEAVER, J.

Plaintiff being in custody of certain live stock in the course of transportation over defendant's road, was riding in the caboose of a freight train. As the train was approaching the city of Marshalltown from the south, it was by some accident broken or separated in two parts; and, as the forward section was brought to a stop for the crossing of another railroad, the rear section overtook it, causing a collision, in which plaintiff claims to have received a severe injury. He alleges that said accident and injury were occasioned by negligence and want of skill on the part of the defendant, and without negligence on his own part. The fact that plaintiff was a passenger upon defendant's train under the circumstances stated, that the train did break in two, that a collision occurred between the sections, and that plaintiff did receive some degree of injury therein, is not seriously disputed; but the defendant contends that in the making up and management of its train it exercised all due care and vigilance for the safety of its passengers, and that there is no evidence to sustain the verdict of the jury. Complaint is also made of certain rulings of the trial court in the course of the trial, and of the charge to the jury.

I. It is first urged that the evidence does not sustain plaintiff's claim as to the serious and permanent character of the injuries sustained by him. It is sufficient to say that upon this branch of the case the plaintiff was corroborated by several witnesses, including one or more physicians who examined or treated him, and the jury were justified in their verdict in this respect. The amount of the damages found ($ 1,183) does not indicate an extravagant allowance, even if the jury failed to find the plaintiff's injuries of a permanent character. If the defendant is chargeable with negligence, as the jury has found, the only question left is the amount of plaintiff's recovery. There can be no doubt, under the evidence, that he sustained painful bruises, and was thereby put to inconvenience and loss of time, extending over a protracted period. Compensation for physical and mental suffering cannot be measured by any unvarying mathematical rule or standard. For want of a better term, we say it must be "reasonable," but what is reasonable is for the jury to ascertain and assess under the facts in each particular case. That finding, if not so flagrant and excessive as to clearly indicate prejudice or passion, the court will not disturb.

II. One Donnor testified as a witness in plaintiff's behalf that he was a passenger in the caboose at the time of the collision, and described the circumstances attending the accident. In reply to the question, "How did it affect the car you were in?" he answered, among other things, "When I got up, I began to work out, and sat down on a seat, and I noticed the boys,--the blood running from their heads." The defendant moved to strike the latter clause of this answer as "incompetent, immaterial, and irrelevant," and to the ruling of the court denying said motion an exception is taken. We see no error in this ruling. The testimony tended to show that the force of the collision threw the passengers forward "all in a bunch together in the front end of the car," and the answer of this witness helped to indicate the violence of the impact which produced the alleged injury to the plaintiff.

III. The third and fourth propositions argued by counsel are to the effect that the exercise of due care by the defendant was conclusively established by the evidence, and the court should have directed a verdict accordingly. Counsel say: "The plaintiff relied wholly, and the question was submitted to the jury, upon the prima facie case that was made by proof of the happening of the accident, and as to which there was in fact no dispute in the evidence. We do not dispute the proposition that, in case of an injury to a passenger, proof of such injury, or proof of the happening of the accident which caused it, makes a prima facie case of negligence upon the part of the carrier; i. e., creates a presumption of negligence, which must be overcome by proof or evidence of care.

This case, therefore, upon this proposition, resolves itself into two questions, viz.: First. How much proof is necessary to rebut such a prima facie case, or to rebut a mere legal presumption of negligence? And, second, when the plaintiff relies wholly upon such legal presumption, and the defendant introduces pertinent and important testimony indicating care, and tending strongly to show that no negligence occurred, is the question as to whether the legal presumption is overcome by the evidence of care one of law for the court, or of fact for the jury?" We think it hardly correct to say that plaintiff "relied wholly" upon the mere presumption which obtains from the occurrence of the injury.

It is true that he did not undertake to point out the specific defect which caused the break in the train, but there was evidence tending to establish facts which plaintiff was entitled to have the jury consider in aid of the presumption referred to. For instance, there was testimony from which the jury would be justified in finding that the train had been separated by reason of a broken link and other testimony tending to show that the separation was occasioned by a broken pin. The link was produced by the...