Devine v. Chicago, Milwaukee & St. Paul Railway Co.

100 Iowa 692 | Iowa | 1897

Gtven, J.

1 I. Appellant presents seventy-one assignments of error, many of which are barely mentioned, but not discussed, in the argument. These assignments may be considered under three heads, namely, rulings on evidence, on instructions; and on defendant’s motion for a new trial. We have examined each of the thirty-one exceptions to rulings on taking the testimony, and find but one which we think requires consideration in this opinion. All the other rulings were so clearly correct, or without prejudice, that we will not take space to further notice them. Dr. E. C. McNeal was called . by the plaintiff, and testified in chief that he attended the plaintiff; to the nature, extent, and probable effect of his injuries, and the amount of his charge. He was not asked to, nor did he, testify in chief to any statements by the plaintiff, nor to any conversation with him on any subject. On cross-examination, defendant’s counsel, in a serie’s of questions, asked, in effect, if the witness had had any conversation with the plaintiff in regard to how his inj uries were received, and whether the plaintiff had not said “that the injuries he received were his own fault, or words to that effect.” Plaintiff objected as not proper cross-examination, and incompetent, and as calling for a conversation between a patient and physician. It is .plain, beyond all question, that it was not a proper cross-examination, and therefore plaintiff’s objections were properly sustained. This being true, we need not follow the discussion as to whether or not the conversation asked for was privileged.

2 3 4 II. We next inquire as to the exceptions to instructions given and refused. The petition alleges, and the evidence shows without conflict, that on the night of December 27, 1898, — a dark, rainy night, — plaintiff was a passenger on one of defendant’s passenger trains from Cedar Rapids to Lost Nation, he having a ticket for the trip; that on nearing Lost Nation the brakeman called the station, and opened the doors, and that plaintiff passed onto the car platform, and down the steps, for the purpose .of alighting from the train; and that as he got off he fell (or was thrown) down, and was injured. The place at which he got off was some distance before the car had reached the depot platform. There is a dispute as to whether the train was stopped from the depot and he got off before reaching the depot platform, plaintiff’s claim being that it was stopped, and that he was thrown down by the sudden starting of the train, while defendant contends that it was only slowed up, and not stopped until the depot platform was reached, and that plaintiff was guilty of negligence in getting off when, where, and as he did. This is a sufficient statement of the facts for an understanding of the questions to be considered. Defendant asked seven instructions which were refused, and excepted to paragraphs 1, 3, 5, 6, 7, and 8 of those given. Appellant’s first complaint of those given is that paragraphs 1, 3, and 7 are contradictory, in stating the negligence charged. The first states it in the language of the petition, which is as follows: “That the defendant was guilty of negligence in stopping the train where it did, and. in inviting and permitting passengers to leave the train, thereby causing plaintiff’s injury.” The third directs the jury that, to find for the plaintiff, they must find that he was injured substantially as alleged, that he was free from negligence contributing to his injury, and “that the alleged injury was caused by negligence on the part of the defendant, in calling out the station and stopping its train before it reached the station platform, and by starting up while the plaintiff was attempting to leave the train after said stop.” In the seventh paragraph the jury were told, in substance, as follows: That if they believed from the evidence that the plaintiff was a passenger as alleged; that the night was dark and rainy; that the brakeman called the station and opened the doors; that the train came to a full stop; that thereupon plaintiff went on the platform where the brakeman was standing, as if to get off, and that the brakeman failed to warn him of danger, and to inform him that the train had not reached the station, and that plaintiff, on account of darkness, did not, and could not, discover that the car was not at the platform, and that, exercising ordinary care, he attempted to leave the train; and that by the starting thereof he was thrown or fell, and was injured, — they would be warranted in finding negligence on the part of the defendant. To stop the train as alleged, and to have invited or permitted passengers to then and there alight therefrom, was not negligence per se, but was negligence, or not, according to the attending circumstances. The petition alleges as one of the circumstances that the train was suddenly started while he was getting therefrom. The matters recited in the seventh paragraph of the charge are all alleged as circumstances which made it negligence to stop the train, and invite or permit passengers to then leave it. The instructions are not contradictory as to the negligence charged, but, as we view them, are, as a whole, plain, explicit, and harmonious. In the fifth paragraph, in instructing as to the care plaintiff was required to exercise, the court said that he must exercise ordinary care to avoid danger that “could be readily discovered by him.” Defendant complains of the use of the word “readily,” and contends that thereby plaintiff was only held to avoid such danger as he could quickly, promptly, or easily discover. Taking the words quoted alone, they may warrant such a construction, but, in view of what is said in other parts of the charge and in that instruction, we think it could not be so understood. In the preceding paragraph the jury were instructed, in effect, that negligence was the doing or omitting to do what persons of ordinary prudence would not have done or omitted; and in paragraph 5 they were told that contributory negligence was such want of care on the part of the plaintiff as was a co-operating cause, and directly instrumental in producing the injury; also, that if the plaintiff, by his own negligence, directly contributed to the injury, he could not recover. In the sixth paragraph the court instructed that if the station was called, and the train soon thereafter stopped, “a person might safely conclude, in the absence of notice, that the train was arriving at the station.” Defendant insists that, if the conclusion of the plaintiff was material, it should have been left to the jury to find it. In stating, as was done, what facts would warrant the conclusion, the question was not taken from the jury. We have examined the instructions asked and refused, and find that, wherever the law was correctly stated therein, it is embraced in the instructions given. Our conclusion upon this branch of the case is that there was no error in the giving or refusing of instructions.

III. Defendant’s motion for a new trial, in addition to the questions already considered, presented the question of the correctness of the special findings, and of the sufficiency of the evidence. We will not extend this opinion by here setting out or discussing the evidence. It is sufficient to say that, upon a careful examination thereof, we are of the opinion that the special findings and verdict have such support therein that we would not be warranted in disturbing the same. Therefore the judgment of the district courtis AFFIRMED.