Winter v. Cent. Iowa R. Co.

• Decision Date: 15 May 1888
• Parties: WINTER v. CENTRAL IOWA R. CO.
• Court: Iowa Supreme Court

74 Iowa 448

38 N.W. 154

WINTER

v.CENTRAL IOWA R. CO.

Supreme Court of Iowa.

May 15, 1888.

Appeal from district court, Cerro Gordo county; G. W. RUDDICK, Judge.

Action for the recovery of damages for a personal injury sustained by plaintiff, as he alleges, while traveling as a passenger on one of defendant's trains, and caused, as he charges, by the negligence of its servants in charge of the train. Verdict and judgment for plaintiff, and defendant appealed.Anthony C. Daly, for appellant.

Sherwin & Schermerhorn, and H. C. Hemminway, for appellee.

REED, J.

Plaintiff, at the time of the accident in question, was riding as a passenger in the caboose attached to a freight train. While the train was in motion a coupling broke, and the caboose and the other cars which were detached, came to a stand-still. The engine and balance of the train had proceeded about two miles when the engineer discovered what had happened. He immediately stopped the train, and commenced backing it towards the standing cars, for the purpose of coupling to them. For some reason, however, he did not have the engine well under control, and when the train struck the standing cars it was moving at quite a high rate of speed. The effect of the collision, as plaintiff claims, was to throw him a distance of eight or ten feet against the conductor's desk, and with such force as to greatly injure his right shoulder. The evidence leaves no doubt that he sustained some degree of injury in the accident, but the extent of his injuries was a disputed question in the case.

1. On the trial plaintiff was permitted, against defendant's objection, to introduce evidence tending to prove certain statements of the conductor and a brakeman employed on the train with reference to the cause of the accident, and the rate of speed at which the engine and cars were running at the time of the collision, and shortly before that. The statements were made soon after the accident occurred. It may be conceded that these statements were not admissible. They related, however, to matters concerning which there was no controversy upon the trial. The evidence showed without conflict that the engine and train was moving at a dangerous and unusual rate of speed at the time of the collision; so that defendant could not be prejudiced by the admission of the statements, and the ruling affords it no just ground of exception.

2. A witness, who testified that he had known plaintiff for a number of years, and that he had worked with him both before and after the accident, was asked the following question, to which defendant's counsel objected, but the objection was overruled: “What, if anything, did you see in his appearance since the accident, that he was able to work as before or otherwise?” The question called for the opinion of the witness, founded on his observation as to the physical condition of plaintiff after the accident. Under the settled rule on the subject the question was competent. See Lawson, Exp. Ev. rule 64; State v. Shelton, 64 Iowa, 333, 20 N. W. Rep. 459.

3. Plaintiff was permitted, against defendant's objection, to introduce evidence of certain statements made by himself long after the accident. The statements were to the effect that ...