143 Iowa 604 | Iowa | 1909
Lead Opinion
Tbe plaintiff brings tbis action as ad
' The theory of the plaintiff is that he was brushed off by the walls of the viaduct, and that his mangled body was afterwards dragged by* the train to a point west of the viaduct, where it was found. Under the evidence there can be no doubt of the correctness -of this theory. The speed of the train was estimated by Hooyer at fifteen miles an hour, and by all other witnesses at twenty-five miles an hour. Plaintiff’s case is based upon the alleged negligence of the
I. .The following is a part of Hooyer’s cross-examination on ¡the first trial: •
1. railways: neglience: credibility of witness: direction of verdict. Q. What was the conversation you (--- had with the brakeman there? A. He said, ‘What are you doing out there ?’ I said, ‘We got on at Oakley Avenue.’ He said, ‘Where is your tickets ?’ I told him my friend on the other end of the coach, in the same position we were in on the outside, had them. He said, ‘Oh, that is an old gag.’ Q. Now you and Mr. Newgren had no tickets ? A. No, sir. Q. You were taken in from the outside of the car? A. Yes, sir. Q. The brakeman evidently didn’t believe your story? A. I do not know. Q. We will say so, he said, ‘That was an old gag?’ A. Yes, sir. Q. Then what did you do ? A. He said then, ‘We will go and see about it.’ Q. You started out and went to the end of the car ? A. Yes, sir. Q. Toward the place where you thought Mr. Graham was? A. Yes, sir. Q. When you got to the middle of the car you met the conductor. A. Yes, sir; when we got to the middle of the car we met the conductor. Q. The brakeman explained the situation to the conductor ? A. Yes, sir. Q. Told the conductor that you two boys had been taken off of the outside of the car ? A. Exactly. Q. Then you claimed that someone was on ahead? A. Yes, sir. Q. The conductor said, ‘We will go and see about it?’ A. Yes, sir. Q. The conductor went up with you to the front end of the ear? A. Yes, sir. Q. The conductor did that without delay? A. Yes, sir. Q. But when you got there you found your friend was not there ?*610 A. Yes, sir. Q. The conductor went at once as soon as he was told? A. Yes, sir. Q. I say, as soon as the conductor heard it he went at once to see whether your friend was on the front of that train or not? A. Yes, sir. Q. You saw that Mr. Graham was not on the train? AYes, sir.
On his examination in chief at the same trial he testified as follows:
Q. After you started forward in the car with the brakeman, what happened? A. About one-half way in the car we met the conductor. The conductor said, ‘Tickets, Tickets.’ Then the brakeman explained to him. He said, ‘Well, we will go and see about it,’ and then we went right to the other end of the coach, and he reached down and opened the door, and there was nobody there. Q. What ■conversation, if any, did you have with the conductor at the time you and the brakeman went out there? Explain what was said by the brakeman and what the conductor said about it A. The conductor asked for the tickets, and the brakeman explained to him that he said, ‘He got on at Oakley Avenue, on the outside of the rear of the coach and hung outside, and when he got in he said his friend was on the other end with the tickets.’ The conductor turned around and said, ‘Well, we will go and see about it.’ He went out to the other door and opened the door, and there ■was nobody there.
On the last trial the witness testified about his conversation with brakeman Wright substantially as before, and the following is his examination in chief from that point:
Q. After talking with the brakeman now and walking forward to the end of the one car, then you say you walked into the second car? A. Yes, sir. Q. What, if anything, did you notice as you walked across the platform between the first and second cars ahead of you ? A. We noticed Roy on the outside. Q. Whereabouts? A. He was standing on the steps at the head end of the .car right through the glass. Q. Did you see him there?*611 A. Clearly. Q. Did you stop and dally in there ? A. No, sir. Q. Did you try to stop the train? A. No, sir. Q. What did you do? A. I went to find the conductor and wanted him to stop the train, I wasn’t acquainted with the working of the train, and couldn’t get him in. Q. After you passed this vestibule and went into the second car, how far did you go in the second car? A. Two-thirds of the way. Q. Did you find the conductor? A. Yes, sir. Q. Just state what occurred then. A. Well, we went up to him, and he thought we were going to pass, and he says, ‘Tickets.’ I says to him, ‘My friend on the outside has our tickets, hanging on the steps on the outside,’ and something was said, I don’t know just what it was. Q. What was the conductor doing? A. Taking up tickets. Q. What kind of a ticket? A. I think he had a mileage book, and I think he was writing a slip. It had some names on it. Q. Did he stop or complete this ticket transaction before he did anything after you stopped him? A. Yes, sir; he completed it. Q. What did he do after you spoke to him in this way with reference to these tickets? A. He finished the taking of the mileage and handed it back to the party. Q. Then what did the conductor do ? A. Went forward to the end of the coach, and out on the steps and opened the door. Q. As he went forword did you tell him that your friend was on the rear? A. No, sir; I thought he understood so. Q. He opened the vestibule door on the outside then? A. Yes, sir. Q. And what happened then ? A. He looked out and saw that there was nobody there, and then he shut the door down. Q. Then what did you do ? A. Went back in the car.
A part of his cross-examination at the second trial is as follows:
Did you ever testify about that fact before in this ease, that you passed into the second car and met the conductor in the second car? A. I don’t know that I did. Q. Didn’t you testify to something different at that time to what you have testified to here ? A. I was never asked that question.- Q. You were asked that question, and didn’t you say that you saw the conductor about the*612 middle of the car that you got on ? A. I don’t think so. Q. Now, Mr. Hooyer, as you were walking through into the next car, do you tell this jury that you saw Roy Graham on.the outside of the car? A. Yes, sir. Q. Did you point him out to the brakeman? A. No, sir. Q. You didn’t say to Newgren, ‘There is Roy, get him in’? A. I didn’t see Newgren. Q. And you went on into the middle of the next car ? A. Yes, sir. Q. When you saw the conductor he was taking a ticket at that time? A. Yes, sir. Q. He was leisurely about it? A. He didn’t hurry any. Q. What talk did you have with the conductor ? A. He says, ‘Ticket, Ticket,’ as I came up to him. I told him that ‘my friend on the outside of the car had oui tickets,’ and some talk passed between him and the brakeman. I think he explained where we were. Q. And then you went to the head of the next car, you and the conductor? A. Yes, sir. Q. You went away from your friend in distress? A. Yes, sir. Q. And the conductor opened the vestibule door in your presence. Didn’t you tell him that ‘He isn’t there’ ? A. No, sir.
On the former trial Hooyer testified on cross-examination as follows: “Q. How long was it after you.got on the train up to the time 'the conductor got up to the place you say Graham was? A. I said two and one-half minutes. Q. You say it was two and one-half minutes from the time you were let in until the time you got up there ? A. Yes, sir.”
At the last trial his attention was directed to the cross-examination just quoted, and the following is a part of the cross-examination of the last trial: “Q. Did the conductor ever get to the place where Roy was ? A. No, sir. Q. Why did you answer at the last trial that it was two and one-half minutes until the conductor got to the place where Roy was. A. From the time we got to the place where we thought he was.”
It is impracticable for us to set out more of the evidence in detail. The important fact is that at the first trial Hooyer testified that, after his conversation with
We do not overlook the fact that there is other testimony in the record to show that the interview with the conductor occurred in the second car, and not in the first one. If we were to accept this testimony it would not help the plaintiff's case. This testimony all tends to show that Graham’s position on the train was two or three cars ahead of his two companions. It is undisputed in the testimony that Hooyer and Newgren were taken in through the vestibule between the last two cars of the train, namely, between the second chair car and the tourist car. Notwithstanding Hooyer’s expressed opinion that Graham got on the third or fourth ear from the locomotive, he testified at both trials that he was on the front end of the same car that Hooyer himself was on. If it were incumbent upon us to pass upon the facts, it would be very clear to us under the evidence that Hooyer and Newgren were taken in at the rear of the second chair car, and that they passed forward to the first chair car, and there met the conductor, and passed by him and looked for Graham at the heád of that car, and then passed on to the head of the diner, where the conductor opened the vestibule door; but we are
This court has gone its full length to protect the right of jury trial against encroachment by the courts under any guise, and one of the rights of jury trial is the right to have the credibility of the witness determined by the jury. Generally speaking there are no limitations upon this rule, but there are limitations upon the application of it. The testimony of a witness may be so impossible and absurd and self-contradictory that it should be deemed a nullity by the court. This court has seldom been confronted with a more marked case of the kind than is presented here. We are united in the opinion that it is our plain duty to so hold. To hold otherwise in such a case would make a farce of .judicial proceedings. See Hannestad v. C., M. & St. P. Ry. Co. (Iowa), 118 N. W. 38; Artz v. Chicago Ry. Co., 34 Iowa, 153; Albrecht v. Railway Co., 108 Wis. 530 (84 N. W. 884, 53 L. R. A. 653); Stafford v. Chippewa Co., 110 Wis. 331 (85 N. W. 1040); Lake Erie Co. v. Stick, 143. Ind. 449 (41 N. E. 367).
The case as a whole was fully discussed by the late Justice Bishop in the opinion handed down on the former appeal. Graham v. Chicago & Northwestern Railway Company, 131 Iowa, 741. We will not repeat that discussion. It was held in such opinion that there was no evidence of negligence on the part of brakeman Wright. On the last trial plaintiff introduced the evidence of two experts, who testified that the train could have been stopped within a few seconds by the use of the emergency brake. The argument is that this ought to have been done by brakeman Wright. That such a sudden stop would not necessarily be fatal or injurious to passengers may be conceded, but that it would necessarily involve some degree of additional danger and a substantial increase of hazard to passengers is too self-evident to require argument. What would happen in such a case to a person hanging by a slender hold on the outside of the car is a question which seems to have been overlooked.
If there is any proof that the failure of Wright to use the emergency brake was negligence, it must be found in the additional testimony of Hooyer. If we should treat that additional testimony as true, • it shows conclusively that the use of the emergency brake was not necessary to the rescue of Graham. If unnecessary, its use would have been foolhardy. When Hooyer reached the first forward vestibule, according to his additional testi
Neither Hooyer’s present evidence nor his former evidence tends to show any other form of negligence on the part of Wright. According to such evidence Wright moved at once in the direction of attempted rescue. Notwithstanding his skepticism of Hooyer’s statement to him, he followed him toward the forward end of the train until he reached the conductor. He turned the matter over to the conductor, as was his right, if not his duty, to do. Thereupon the conductor went with Hooyer to the forward end of that car. We do not overlook the fact that Wright testified otherwise. We are confining our consideration of the case to the alleged facts as testified to by Hooyer. lie stands alone in his version of what transpired. The other evidence in the case greatly preponderates against him. We therefore shut our eyes to it. The plaintiff, at the last trial, expressly exonerated the conductor from all charge of negligence. Whether therefore we regard Hooyer’s additional evidence as entitled to consideration or not, it furnishes no additional proof of negligence on the part of Wright. The case must be controlled by the former opinion of this court. Indeed, if
Defendant’s motion to direct a verdict should have been sustained. — Reversed.
Rehearing
Supplemental opinion on rehearing.
I. The plaintiff calls our attention to the fact that in the original opinion we did not formally rule upon his cross-appeal. What we did say was necessarily determinative of the cross-appeal adversely to the plaintiff. The plaintiff urges upon us a reconsideration of our former opinion insofar as its conclusions are fatal to his cross-appeal. His argument is that upon the testimony of Newgren and Brundage and, Wright alone, disregarding wholly the evidence of Hooyer, he was entitled to go to the jury on- the theory that Graham was on the steps of the second or third car from the engine, and that Brundage saw him there. This is based (1) upon the testimony- of Brundage that .he -and Wright went through the vestibules of the three sleepers, looking for trespassers, and discovered none; (2) upon the testimony of Newgren as to where he thought Graham was; and (3) upon the inference which the jury might draw that Brundage did see Graham on the second or third car from the engine, notwithstanding his denial. The testimony of Newgren upon which such reliance is placed is his following cross-examination: “Q. What car did you say Boy Graham boarded as the train pulled out of Oakley Avenue? A. I think about the second or third car from the front, from the engine. Q. That would be the first or second sleeper on the train? A. I don’t know how the train was made up. Q. If the train was organized with a buffet car and three sleepers, it would be the first or second sleeper that he got on? A. Tes, sir. Q. Tou are sure of that, are you? A. That is as near as I know. Q. You testify
Whether the plaintiff was entitled to have them both submitted to the jury in the alternative, or whether the. court could and should have required him to elect, at the close of the evidence, upon which count he proposed to
Plaintiff argues on the theory that the jury had no chance to pass upon Newgren’s testimony in cross-examination, and that they might have found upon such testimony that Graham was on the second or third car, instead of on the seventh. But the court did not withdraw such issue from the jury. It only withdrew from the jury the question of the alleged negligence of Brundage. The issue of whether Graham was on the front end of the seventh car or whether he was two or more cars further ahead inhered in the case as made by the original count, and as submitted to the jury by the court. The jury had the testimony of Newgren and Hooyer on that question. The burden was upon the plaintiff to prove upon what part of the train Graham was. Unless it was proved that he was on the front end of the seventh car, plaintiff had no case under the original count. Newgren testified to his judg
In this discussion we have confined ourselves to a consideration of the case as it was before the trial court. Plaintiff’s argument ,on rehearing is somewhat anticipatory, and is directed to a supposed situation which may arise in the future. We cannot follow the argument into that field. Whether it is possible for the plaintiff to recast his issues and his evidence for a future trial is a speculation into which we cannot properly enter. Certain it is that the questions already decided by this court in the opinions on the two appeals must be deemed as the law of the case for all time so far as those questions are concerned.
The former opinion is adhered to with this modification: That it is now formally ordered that the case be affirmed on the plaintiff’s cross-appeal, and reversed on defendant’s appeal. — Reversed and remanded.