Whittlesey v. Burlington, C. R. & N. Ry. Co.
| Decision Date | 19 May 1902 |
| Court | Iowa Supreme Court |
| Parties | WHITTLESEY v. BURLINGTON, C. R. & N. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Dickinson county; W. B. Quarton, Judge.
Action to recover damages for personal injuries received by plaintiff while riding as a passenger on defendant's train. Verdict and judgment for defendant, from which plaintiff appeals. Affirmed.Funk & Weed, Milt H. Allen, and J. G. Myerly, for appellant.
L. E. Francis and S. K. Tracy, for appellee.
Numerous assignments of error are argued by appellant's counsel, but they can be satisfactorily disposed of under a few general headings. The accident happened by reason of the ditching of defendant's passenger train, due to a broken rail. Plaintiff's counsel sought to show that the rail was broken before the train went upon it, and for this purpose asked witnesses whether they had seen broken rails on other sections of the road. The court refused to receive this evidence, and, we think, properly. The fact that broken rails had been seen on other parts of the road would plainly not be material in determining whether this particular rail was broken when the train ran upon it. Other questions were asked on behalf of plaintiff with reference to whether witnesses had ever seen broken rails lying intact in position; and it is claimed that this evidence, if admitted, would have rebutted the testimony of defendant's witnesses that they had passed over the track a short time before the wreck occurred, and discovered no broken rails, and that they would have noticed a broken rail had there been one, even if it had been broken on top of the ties. But here again the difficulty is that the evidence, if admitted, would tend to show negligence by the defendant in not discovering broken rails on some other and distant part of the track. Such evidence was plainly immaterial.
Evidence was introduced in behalf of defendant tending to show a settlement with plaintiff for a consideration paid; and counsel for plaintiff, for the purpose of proving that plaintiff was out of her mind at the time of the settlement, asked a physician to testify “as to whether persons that are insane, or have deranged minds, at some times appear to be sane, and talk practically sane upon subjects, and converse in practically a sane manner.” This question was objected to for the reason that there had been no evidence introduced that plaintiff was in any manner insane at the time of the settlement, and the objection was sustained. Counsel for appellant does not point out any evidence which would tend to show that plaintiff was out of her mind when the settlement was made, and therefore we must assume that the ruling of the court was correct. There was some evidence tending to show a mental deterioration in plaintiff following the accident, but the testimony on this point related to the measure of damage, and not to the condition of plaintiff's mind when the settlement was made, within a short time after the injury. But aside from the fact that the objection was well taken, it appears that the witness did answer the question, and no prejudice could have resulted from the ruling. This answer was followed by another question as to whether that is the rule or not with patients of unsound mind, but certainly, in the absence of some evidence that the plaintiff was of unsound mind at the time of the injury, this ruling was not erroneous.
In the same connection we may consider an exception to an instruction with reference to the effect of the settlement. Counsel for plaintiff complains because the court told the jury that, if the plaintiff “knowingly signed the agreement, but at the time she signed it she gave little attention to its contents, or did not read it, or ask that it be read to her, then she was bound thereby”; and it is contended that this was not a sufficient statement with reference to the defense of mental incapacity....
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