Nesbit v. Chi., R. I. & P. Ry. Co.
Decision Date | 17 November 1913 |
Citation | 163 Iowa 39,143 N.W. 1114 |
Court | Iowa Supreme Court |
Parties | NESBIT v. CHICAGO, R. I. & P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Blackhawk County; Franklin C. Platt, Judge.
Action at law to recover damage for an assault made upon plaintiff by one of defendant's employés. A jury was called, and, at the conclusion of all the testimony, the trial court sustained defendant's motion for a directed verdict, and plaintiff appeals. Reversed.Reed & Tuthill, of Waterloo, for appellant.
F. W. Sargent and J. L. Parrish, both of Des Moines, and Mullan & Pickett, of Waterloo, for appellee.
Plaintiff is a physician, living at Waterloo, Iowa. Anticipating a shipment of drugs over defendant's road which he had ordered, he went to defendant's freight house in an automobile, accompanied by his 17-year old son. One Pattison was defendant's freight house foreman, who had full authority over the same, with the right to employ and discharge men in the conduct thereof. He had charge of all incoming freight and of the freight house and platforms used for loading and unloading goods. When plaintiff and his son reached the freight house, plaintiff sent the son into the freight depot to get the goods. When he got into the depot, he picked out Pattison as the man in authority, and asked him for the goods. Pattison told the boy to go to the office, and get the expense bill. Acting upon this suggestion, he went to the office, which was, as we understand, on the second floor of the building, but found it locked. He then returned to where his father was, thinking that he might be able to get the goods. Upon the boy's return, the two, father and son, went into the freight house, and plaintiff asked Pattison if he could get the drugs. Pattison then asked the boy, “Did you get a bill?” to which the boy responded, “No; the office was closed.” Pattison retorted, “Yes; the office closes at 3 o'clock.” Plaintiff then said to Pattison, “Why didn't you tell the boy the office was closed?” to which Pattison responded, “I did tell the boy.” Plaintiff then asked the boy if Pattison had so told him, and the boy said, “No; he didn't.” We here quote from the boy's testimony as follows:
A slightly different version of the matter was given by the boy on cross-examination, as follows: “Went up there to get box of drugs. Saw men working in freight house. Asked him to get box of drugs. Directed me to Mr. Pattison, who was in box car. Asked him if I could get a box of drugs for Dr. Nesbit. He says, ‘Have you got a bill?’ I says, ‘No.’ He says, ‘Go to the office, and get a bill.’ Went to office, and found it locked. Went back, and told Father could not get bill or drugs because office locked, and we went together to Pattison. Father says, ‘Can I get a box of drugs?’ Mr. Pattison says, ‘Did you get a bill?’ I said, ‘No; the office was closed.’ He says ‘Yes; the office is closed at 3 o'clock.’ Father says, ‘Why didn't you tell the boy the office was closed?’ Mr. Pattison says, ‘I did tell the boy.’ Papa turned to me, and said, ‘Did he tell you the office was closed?’ I said, ‘No; he did not.’ Father says, ‘The boy said you did not tell him the office was closed; I do not believe you did, or he would not have gone up there.’ Mr. Pattison says, ‘Do you call me a liar?’ Father says, ‘No; I don't call you a liar, but I think you are misrepresenting things around here.’ Mr. Pattison says, ‘Well, you are a liar.’ Father says, ‘If anybody is lying around here, it must be you.’ Pattison slapped him with his left hand. Father went back two or three feet. Pattison remained where he was standing. Father had both arms out in front of him, and tried to get his two arms. Did not strike him. Tried to catch hold of him. Q. He started towards Pattison, didn't he, and tried to strike him? A. No, sir. Q. You say he didn't try to strike him? A. No, sir; he had his two arms out, and looked like he was trying to grab him. Q. He rushed right up to Pattison, didn't he? A. Yes, sir. Q. And tried to strike him? A. If he had hold of him with both hands, he couldn't strike him. Q. What do you say as to whether he tried to strike him or not? A. He grabbed him. Q. Did you testify on the trial of the case of City of Waterloo v. Pattison that your father struck at Pattison, and didn't you answer, ‘Yes, sir?’ A. Yes, sir. Q. Didn't you further testify as follows: ‘Didn't he have to step forward in order to do that?’ and you answered, ‘About one or two steps?’ A. Yes, sir. Q. Question: ‘He had to take one or two steps forward in order to strike Pattison?’ and did you not answer, ‘Yes, sir?’ A. I don't remember that. Q. Question: ‘Did he rush at him?’ Answer: ‘No; he took about two steps.’ Question: ‘How did he strike, with one hand or with both?’ Answer: ‘Two hands.’ Did you testify to that? A. Yes, sir. Q. Question: ‘Where did he strike Pattison?’ Answer: ‘I think along the arms.’ Was that your testimony? A. Yes, sir. Q. Well, was it true, when you testified to it before upon the witness stand, that your father did attempt to strike Pattison? A. Yes, sir. Q. It was true, was it, when you testified to it then? A. Yes, sir. Q. And it is true now that he attempted to strike him, isn't it? A. Yes, sir.”
Plaintiff's own version of the matter may be understood from this quotation from the record:
On cross-examination, he testified: ...
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