124 Iowa 623 | Iowa | 1904
Lead Opinion
Nor is the privilege taken away, as contended for, by the fact that while upon the witness stand, and elsewhere, plaintiff had stated that he was unconscious when taken to, and •while he remained in, the office of the physician, and that the testimony sought to be elicited had relation solely to the con
IV. Plaintiff, in company with a large number of other persons, had been attending a' fair at Centerville. While on the train going home, several of the party, including plaintiff, indulged more or less freely in intoxicants. Plaintiff testifies that after he got on the train he drank several swallows, or about half a teacupful, of whisky. It appears that he went back into the rear car of the train, and .there stopped and engaged in conversation with a party of young men and women. In the course thereof, he was accused of some impropriety of speech and conduct, whereupon an angry altercation arose. Others of the party interfered, and, for the time being, prevented blows being struck. At this juncture the brakeman, Eiehart, came in, and, upon being apprised of the situation, conducted plaintiff to the rear end of the car, and ordered him to sit there and keep quiet. In the meantime two of the young men of the party had taken the young women into a forward car, and, returning, at once started for the rear end of the car, armed with beer bottles. Plaintiff says that, as they came up, Eiehart, who was standing near, told them that “ this man [plaintiff] is attending to his own business, and you leave him alone.” The demand of the brakeman was not heeded, however, and a general fight began, during which plaintiff knocked Loughman down, and then was struck himself by a beer bottle in the hands of some one of the assaulting party, and felled to the floor. Plaintiff says that he was rendered insensible by one of the blows struck with the beer bottle, and that he did not recover consciousness until the next morning. Thus far there is practically no conflict in the testimony. Now, in respect of what was done by the brakeman to quell the disturbance, plaintiff says that when the attack was made upon him the brakeman did not attempt to prevent the assault. The other witnesses unite in saying that he
We think, also, that the instruction is open to criticism for that the jury may well have inferred therefrom that, if it was found that plaintiff had been wrongfully pushed out upon the platform by the brakeman, then defendant would be liable,, whatever the cause from which his subsequent fall from the team immediately proceeded, provided the same was not the result of his own affirmative act or negligence. It is to be borne in mind that a recovery is sought in this action because plaintiff was wrongfully ejected from the train, and not simply because he was wrongfully pushed out upon the platform. Accordingly, to support a recovery, the jury was required to find not only that the pushing of plaintiff out upon the platform was wrongful, but that, as a natural and proximate result thereof, he fell from the train and sustained the injury of which he complains. The manner of his leaving the platform was therefore a matter of primary importance, and the defendant could be made liable only upon its being shown that the result was brought about by the positive act of the brakeman. This phase of the case should have been made more clear, and especially in view of the fact that there was-much evidence tending to show that plaintiff voluntarily jumped from the train after he was put out or went out upon the platform.
We have examined the other assignments of .error presented by appellant. Some of them are without merit, and
The judgment of the trial court is reversed, and the cause is remanded for a new trial.- — Reversed.
Dissenting Opinion
(dissenting). The ease is reversed because of an error in the instructions in failing to define the terms “ circumstances claimed ” and “ such circumstances,” used in the sixth instruction. I think they are defined in the instructions given, when applied to the pleadings and concessions of counsel made during the trial, and that when all of the instructions are taken together, as they should be, no such error as the majority have found really exists. To show that I am not mistaken in this, I here quote in full the fourth, fifth, and sixth instructions given by the court, which relate to the matter covered by the fourth division of the opinion. They read as follows, to wit:
(4) It is claimed by plaintiff that he was ejected by one Fiehart, and it is admitted in evidence and argument that said- Fiehart was a brakeman upon said defendant’s train. Under such showing, it may be considered established that said Fiehart- was an agent and employe of defendant. It is claimed by the plaintiff that while the said train was in passage between the stations of Seymour and Harvard, in Wayne county, Iowa, that said Fiehart forcibly ejected said plaintiff .from said train, in the nighttime, and while said train was running at a high rate of speed. Upon this contention the defendant takes direct issue. It denies that said Fiehart forcibly ejected plaintiff from said train. Unless the plaintiff sustains his contention regarding this material and vital essential, he cannot recover. If you find from the evidence that the plaintiff got off said train voluntarily or under compulsion of others, or ran from said train through fear of the assaults of others, or if you find that plaintiff got off or was put off said train for any other reason or in any other way than that asserted by said plaintiff, as stated above, the plaintiff cannot recover.
(5) If you find tha-t the plaintiff while upon said train got into an altercation with others, which culminated in an affray, in which the plaintiff was assaulted and injured,
(6) But the plaintiff is not required to show that the' said brakeman actually threw the plaintiff from said train. .If the evidence shows that the said brakeman wrongfully and forcibly put said plaintiff out of said car, and upon, the platform thereof, and that for that reason, and without the affirmative act or the negligence of the plaintiff, he fell from said platform, that would be an ejectment from the train. In order to show that the act complained of was wrongful,'it,is not necessary that it be shown that it was done with malice or ill will against the plaintiff. It would be sufficient to show that the act was wrongful, if it appear that the said brakeman was endeavoring to remove said plaintiff from said train under the circumstances claimed. To put any person off a train under such circumstances is a wrongful act; and if the evidence justify a finding by you that the said brakeman put, or assisted in putting, plaintiff off said train, and that he did so forcibly and willfully, and with malice, such act would also be ivrongful. The defendant denies the allegation that
Here we have the exact claims made by the plaintiff regarding his forcible ejection from the train stated in plain and concise language. The jury is specially instructed that unless it he shown that Eiehart forcibly ejected plaintiff from the train in the nighttime, and while it was running at a high rate of speed, plaintiff could not recover. .It is also stated in express terms that, if plaintiff got off or was put off the train in any other way than as above stated, he could not recover. This thought is amplified in every conceivable way in the fifth instruction. In the sixth the court refers to the “ circumstances claimed ” and “ such circumstances,” and in-the fourth the jury is told just what plaintiff’s claim was, and as to what he must show in order to recover. This is the only statement anywhere in the instructions as to what these claims were. Manifestly the jury could not have found for the plaintiff, under these instructions, without finding that defendant’s brakeman forcibly ejected plaintiff from the train in the nighttime, and while the train was running at a high rate of speed. These instructions were really more favorable to the defendant than it was entitled to. Every conceivable feature of the case was covered by the instructions which we have quoted. The sixth has reference to what would amount to a forcible ejection, and is clearly correct. The instructions, as a whole, show that the only issue in the case was whether or not the brakeman forcibly ejected plaintiff from the train. Defendant did not plead any excuse or justification for the act. Its answer was a general denial of the allegations of the petition, and, as stated in the instructions, the only question was whether plaintiff was forcibly ejected in the nighttime, and while the train was running at a high rate of speed. If plaintiff failed to establish this claim, the court