Shepard v. The Chicago, Rock Island and Pacific Railway Company

• Decision Date: 29 January 1889
• Citation: 41 N.W. 564,77 Iowa 54
• Parties: SHEPARD v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY
• Court: Iowa Supreme Court

41 N.W. 564

77 Iowa 54

SHEPARD v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

January 29, 1889

Decided January, 1889.

Appeal from Wapello District Court.--HON. DELL STUART, Judge.

ACTION to recover damages alleged to have been caused by wrongful acts on the part of defendant. The cause was tried to a jury and a verdict and judgment rendered for plaintiff. The defendant appeals.

AFFIRMED.

Thos S. Wright and McNett & Tisdale, for appellant.

Roberts & Epps and E. L. Burton, for appellee.

OPINION

ROBINSON, J.

The petition alleges that plaintiff, on the twenty-third day of August, 1886, procured of defendant a railway ticket from Ottumwa to Knoxville, Iowa, and return by way of Knoxville Junction; that on said day she took passage on a freight train of defendant, at Ottumwa, for the purpose of going to Knoxville; that when the conductor examined her ticket he agreed to notify her when to change cars, and to give her an opportunity to change cars at Knoxville Junction; that she at that time told the conductor that she was a stranger on the road; that she relied on said promise of the conductor, and remained on the train until it had gone two or three miles beyond Knoxville Junction, at which place the conductor stopped his train, and in a very rude and insolent manner and by the use of rough and abusive language, compelled and forced plaintiff to leave the train, against her protest, in a steep and dangerous place in the road, with a heavy basket of baggage and her infant child; that the weather was intensely warm, and plaintiff was compelled to walk the distance back to Knoxville Junction, and carry her child in her arms, and leave the baggage by the roadside; that in consequence of what they were compelled to endure she and her child became sick, and she was compelled to give the child additional care, watching and medicine; that by reason of said wrongful acts of the conductor plaintiff suffered great bodily pain and mental anguish; that she was thereby humiliated, insulted, and greatly wronged, and suffered damages in consequence in the sum of four hundred and ninety-five dollars. The answer contains a general denial, and alleges that if plaintiff received any injury, or suffered any damages, they were the result of her own negligence and wrongful acts, and that defendant is in no manner responsible therefor. The verdict and judgment were for the sum of three hundred dollars damages.

I. The evidence submitted on the part of plaintiff tended to sustain the allegations of her petition. Much of it was objected to by defendant. Some of the evidence offered by defendant to prove its rules and customs in regard to carrying passengers on freight trains, and the stopping of such trains at depots was rejected. Counsel for appellant discuss various questions based on the rulings of the court in admitting and rejecting evidence, which we do not find it necessary to consider in detail, for the reason that the evidence as to which the rulings were made was necessarily withdrawn from the consideration of the jury by the charge of the court. The charge specified the obligations and duties of defendant and its employes in regard to stopping at stations, notifying passengers when to change cars, and carrying them to their destination. That was followed by this paragraph: "These general duties of the railway company are defined that you may have them out of the way. They are not really involved in this case, and should not have your attention further than you should not be influenced by the arguments made in your presence concerning them. The material question for you to determine is this: Did the conductor, in a rough and rude manner, compel the plaintiff to leave the train, as claimed by her?" The jury were also told that they need not consider how plaintiff came to be carried past Knoxville Junction; that they were to "consider all the evidence bearing on the question, and determine where and how plaintiff left defendant's train, and what the conduct of the conductor was towards her," that if they found that "plaintiff left the train at her own request, as claimed by the defendant, your verdict should be for the defendant;" and that, if they found for the plaintiff, they should not compensate her for injury to her health or the health of her child, nor for loss of time; that her damage must be nominal, or based on the wrongful conduct of the conductor. Under these instructions, all evidence in regard to the management of the train, the neglect of duty by employes, and the obligation of passengers prior to the time the train left Knoxville Junction, was immaterial; and if the instruction were followed, evidence of that character which was admitted could not have been considered by the jury. It would undoubtedly have been the better practice to exclude all improper evidence when offered, but it seems to have been admitted on the theory as to plaintiff's right of recovery, according to which...