154 Iowa 449 | Iowa | 1912
This is the third time the case has been before us. Former opinions will be found in
1. ACTIONS: substitution of parties: what law governs.
One question now presented for the first time is the effect to be given the death of Gordon after the commencement of his suit. For defendant, it is contended that, as the cause of action arose in Indian Territory, Gordon's death had the effect to abate the action, and that there can be no recovery of damages, for the reason that under the law of that territory causes of action for personal injuries do not survive. Without now determining the question as to the law of Indian Territory at the time the cause of action arose, it is sufficient to say that Gordon commenced his action against the defendant in this state before his *451
death, and upon his demise his administratrix was substituted, pursuant to the statutes of this state. The universal holding of the courts in such cases is that the law of the forum governs, and as, under our statute, the cause of action survives the death of the plaintiff there is no merit in defendant's contention. We quote the following fromRailroad Co. v. Joy,
2. SECOND APPEAL: law of the case.
II. It is argued that the court erred in submitting the question of defendant's negligence in constructing its track south of the town of Minco with sharp ascending and descending grades, for the reason that there is no testimony that such construction was negligent and nothing to show that it was the proximate cause of the injury. This matter was fully considered on a former appeal, and is treated in the first, second, and third divisions of the opinion reported in
3. INSTRUCTIONS: submission of issues.
Aside from this, we think there was enough testimony to take the case to the jury upon both propositions. Moreover, *452
the defendant asked instructions covering this feature of the case; thus admitting that these were questions of fact for the jury. Bonnot Co. v.Newman,
4. EVIDENCE: res gestae.
III. Gordon's testimony was taken on a previous trial, and that testimony was reintroduced upon this trial. Among other things, he was permitted to testify, over defendant's objections, that immediately after his injury, and as he was being pulled from under the cars, he said to the engineer, "My God, Ben, they broke in two," to which the engineer responded, saying, "Yes." Defendant contends, as upon the former appeal, that this was a self-serving declaration, and therefore inadmissible. While not specifically treating of this matter on the former appeal, it was considered and thought not to be erroneous. We now hold expressly that this declaration was so closely connected with the main event, so spontaneous, and so descriptive as to be a part of theres gestae. In support of this holding, see Hutcheis v. Railroad,
Armil v. Railway Co.,
No prejudicial error appears, and the judgment must be, and it is,affirmed.
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