Rayburn v. Cent. Iowa Ry. Co.

• Citation: 74 Iowa 637,38 N.W. 520
• Parties: RAYBURN v. CENTRAL IOWA RY. CO.
• Decision Date: 08 June 1888
• Court: United States State Supreme Court of Iowa

74 Iowa 637

38 N.W. 520

RAYBURN

v.CENTRAL IOWA RY. CO.

Supreme Court of Iowa.

June 8, 1888.

On petition to rehear Rayburn v. Railway Co., 35 N. W. Rep. 606.

BECK, J.

A petition for rehearing calls our attention to certain matters discussed in the argument of defendant's counsel, which demand further attention.

1. Counsel in the petition insist that plaintiff did not establish his right to recover, for the reason that his amended petition alleges that the section boss caused the engineer to increase the speed of the train while plaintiff was attempting to get upon the car, which caused the injury. The evidence tends to show that the conductor gave the order, by a signal, for the increase of the speed of the train, and the court in an instruction directed the jury that, if they should so find, it is a fact supporting plaintiff's right to recover. Counsel insist that the evidence in this regard failed to support the allegation of the petition, and the instruction referred to is erroneous, in that it recognizes the evidence as supporting the petition. It is only necessary to say that, assuming the petition as amended does allege that the section boss gave the order to the engineer, which is denied by plaintiff's counsel, the variance between the allegation and proof is not material, as it is not made to appear, nor is it claimed, that defendant was misled to his prejudice. Code, § 2686.

2. The plaintiff was permitted to prove that he was a mechanic, and could earn at his trade more than the wages paid him while in the employment of the defendant. To the admission of this evidence, defendant objected. The capacity of plaintiff to earn money is a proper matter to be considered in determining the measure of his damages. The fact that he was in the employment of defendant at less wages than he could have earned at his trade did not lessen his capacity to earn money at his trade. It does not appear that, when he entered the employment of defendant, he was in any manner incapacitated to work at his trade, or that he had permanently abandoned it. The evidence therefore was correctly admitted.

3. It is complained by defendant that the district court erroneously overruled a motion to suppress a deposition on the ground that the notice for taking it does not state the state, county, city or town in which the officer to whom the commission issued resided. The motion to suppress the deposition was based on an affidavit of defendant's counsel,...