Pence v. Wabash R. Co.

• Decision Date: 10 April 1902
• Citation: 90 N.W. 59,116 Iowa 279
• Parties: PENCE v. WABASH R. CO.
• Court: Iowa Supreme Court

116 Iowa 279

90 N.W. 59

PENCE

v.WABASH R. CO.

Supreme Court of Iowa.

April 10, 1902.

Appeal from district court, Davis county; F. W. Eichelberger, Judge.

Action at law to recover damages for injuries sustained by plaintiff while attempting to board defendant's passenger train. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Affirmed.Geo. S. Grover and S. S. Carruthers, for appellant.

Payne & Sowers, for appellee.

DEEMER, J.

Plaintiff went to Bloomfield, a station on the defendant's line of road, to board a passenger train, northward bound, for the town of Belknap. While there she was injured by being thrown, or falling, on the station platform. She claims that, as she was about to board the cars, the defendant's brakeman directed her to go further ahead and board the cars at the next opening; that she did as she was bidden, and after mounting the steps was again notified by the brakeman not to enter the car, but to get off and go to the next opening ahead; that she started to obey the order, and just as she was in the act of alighting the train started with a sudden jerk, threw her on the platform, broke her arm, and caused the other injuries of which she complains. Defendant denies these claims, and says that plaintiff's injuries were due, either to plaintiff's attempt to board the train while in motion, or to her swooning away from fright or excitement after she had safely alighted from the train. A number of special interrogations were submitted to the jury, the answers to which negatived the defendant's claim, and a general verdict was returned for the plaintiff.

Defendant contends that neither the answers to the special interrogations nor the verdict have support in the evidence. That there is a conflict in the testimony is conceded, but the contention is that the great weight of the evidence is with the defendant. While it is true that the greater number of witnesses support the defendant's theory, yet it is not our province to weigh the testimony and determine the preponderance. That, as counsel well know, is for the jury.

Claim is made that there is no evidence of permanent disability, and that the verdict is excessive. We do not agree with counsel on either proposition. There was evidence of permanent disability, and the size of the verdict, it being for $1,750, does not indicate passion or prejudice. Other matters than impairment of earning capacity were proper to be considered, e. g., pain and suffering.

Testimony as to the arrangement plaintiff had with her daughter and son-in-law for her board was properly admitted in evidence. Her injury was such as to forfeit her claims under this contract and destroy her capacity to earn a living.

Testimony was received in rebuttal over defendant's objections regarding the condition of plaintiff's health before receiving the injuries of which she complains. While not strictly rebuttal in character, the evidence was competent, and relevant to the issues, and we do not reverse because received out of order. Defendant did not ask permission to meet this evidence, and no prejudice resulted.

2. De...