Nesbit v. Chi., R. I. & P. Ry. Co.

CourtUnited States State Supreme Court of Iowa
Citation163 Iowa 39,143 N.W. 1114
PartiesNESBIT v. CHICAGO, R. I. & P. RY. CO.
Decision Date17 November 1913

163 Iowa 39
143 N.W. 1114


Supreme Court of Iowa.

Nov. 17, 1913.

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.

[143 N.W. 1115]

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:

“* * * Papa turned to Mr. Pattison, and says, ‘The boy says you didn't tell him, and I don't believe you did;’ and Mr. Pattison says, ‘You call me a liar?’ and Papa says, ‘No; but you must be misrepresenting things around here;’ and Mr. Pattison says, ‘You call me a liar?’ and Papa says, ‘If any one is lying, it must be you;’ and then Mr. Pattison reached out, and slapped him with the left hand, and Papa made an offer to grab him, and got hold of his arm, and I think maybe ripped his sleeve, and Papa turned around, and started to run, and Pattison, right behind him, kept hitting him, and when he got to the end of the platform he gave him a shove, and, about as he was to shove him off, I went down to the other end, and he turned around after he got through shoving him off, and grabbed me, and hit me, and shoved me off, too. * * * Q. State how your father acted while Pattison was crowding him over toward the end of the platform. A. He was running toward the end of the platform getting out of the way.”

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

[143 N.W. 1116]

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: “Q. What did you say to Mr. Pattison? A. I asked him if I could get the drugs, and Mr. Pattison turned to Harold, at my side, and said, ‘Did you receive the expense bill?’ Harold said, ‘No; I was there, and the office was closed, and I could not get any bill.’ * * * I asked Mr. Pattison why he didn't tell him. ‘Oh, yes,’ he says, ‘the office closes at 3 o'clock, and any one comes there after 3 o'clock’--and I asked Pattison why he didn't tell him the office was closed, and he said he did, and Harold was right there, and I says, ‘Did he?’ and he says, ‘No; he sent me upstairs to get the bill, and he would get the drugs for me.’ * * * Mr. Pattison called the kid a liar, and said he did tell him. I says, ‘That is a nice way to treat a boy like that; I don't think you told him that; he has never been here before, and he doesn't know anything about the platform or office, and he wouldn't be likely to go upstairs, and look around for the office, when he has never been there.’ Mr. Pattison called me a liar then, and I says, ‘No; I am not a liar; if any one is lying about this matter, you are.’ Then he struck me on the side of the face, turned me clear around, and knocked my hat off. I stood there with my automobile coat and one or two small medicine cases in my hand, or pocket, and didn't go up there with an expectation of what I received; had no idea of any trouble of any kind. * * * After he struck me, why, of course, I went to catch him with my hands. * * * I caught hold of his sleeve; his sleeves were rolled up here, and I got my finger in his sleeve, and I pulled his sleeve out. Then he struck me on side of face with hand, and knocked me down. I almost fell over flat towards him. I saw I was going to be very badly hurt, and I turned, and ran toward end of platform, and all time I was running Mr. Pattison was pounding me on back, and when I come to end of platform he took me by shoulders, and threw me down as hard as he could, and turned my ankle over, and I was bleeding from mouth and nose as hard as I could. I took my handkerchief, and it was filled with blood in no time. I realized my nose was broken, and I took it, and straightened it up. I remained there little while, and Harold went and called police. * * * Where he threw me off the south end of platform, there were no steps. They were on west side. Just as he threw me off the platform, I turned around, and Harold followed me up, and just as I looked up I saw him take the boy, and slap him on side of face; I could hear it crack. Then he took him by shoulders, and set him off on the ground. After he struck me first I never turned back; went right off, and he kept following me, and put me off; never turned around at all.”

On cross-examination, he testified: “Q. Now, when you found him, you demanded to know why you couldn't get that box of drugs, didn't you? A. Yes, sir. Q. And he said to you that you would have to have an expense bill, didn't he? A. No, sir; he didn't. Q. Didn't he ask the boy at that time if he had the expense bill? A. Yes. Q. And the boy told him he didn't have it? A. Yes, sir. Q. He said he couldn't deliver the goods unless he had the expense bill? A. He said, ‘Oh, yes; the office is closed Saturday afternoon at 3 o'clock, and you can't get any expense bill this time of day.’ Q. Then when he said that you said, ‘Why didn't you tell the boy the office was closed, and not keep

[143 N.W. 1117]

me waiting here?’ A. Yes, sir. Q. You were a witness, Doctor, upon the criminal prosecution of Mr. Pattison that was tried in this court before a jury? A. I was. Q. You testified at that time in behalf of...

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2 cases
  • Nesbit v. Chicago, R.I. & P. Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • 17 Noviembre 1913
  • Rosenstein v. Bernhard & Turner Auto. Co.
    • United States
    • United States State Supreme Court of Iowa
    • 21 Diciembre 1920
    ...Schultz, 98 Iowa, 341, 67 N. W. 266;Seybold v. Eisle, 154 Iowa, 128, 134 N. W. 578, Ann. Cas. 1914A, 1097;Nesbit v. Chicago, Rock Island & P. Ry. Co., 163 Iowa, 39, 143 N. W. 1114. In Yates v. Squires, supra, the court laid down the broad rule as follows: “A master is liable for the torts o......

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