194 Iowa 1203 | Iowa | 1922
Plaintiffs are the daughters of Orson 0.
The evidence shows that Green resided at Marshalltown, Iowa, and was a locomotive engineer in the employ of the Minneapolis & St. Louis Kailway Company; that, on the first day of August, 1916, while he-was attempting to pass from the deck of the engine to his seat in the cab, his foot slipped, and he struck his side against the seat. This accident, it is claimed by appellees, caused a cancer of the left kidney, of which he died on the first day of December following. The fireman was the only witness who saw or testified to the accident. He testified that deceased stepped upon a tool box with his left foot, which slipped and caused him to swing around in such a manner as to strike his left hip or side against the edge of his seat in the cab. According to the testimony of the fireman, Green’s body fell abput eight inches before striking the seat. The testimony of this witness, that deceased struck his left side against the seat, is contradictory of the statement made by him to officers of appellant. The witness admitted that he stated to them that deceased struck his right side, and gave as his reason for such statement that their treatment of him was ungentlemanly. The fireman further testified that Green said at the time that he was not hurt much, and that, contrary to his custom, he stood up most of the time until they arrived at Marshalltown. The only trip made by Green after the accident was on August 3d.
Some time early in August, he consulted a physician, who testified that he found no external evidence of injury, but who further testified that Green told him he had had an accident. It was not very long after he consulted the physician until his difficulty was diagnosed as cancer of the kidney. After the physician first consulted reached the conclusion that Green
The policy in suit provided for the payment of a weekly indemnity of $20 per week. Notwithstanding the fact that Green lived from August 1st until December 1st following, no claim or application wras made to appellant for the payment of this indemnity. The policy was" not forgotten during that period, because one of appellees testified that she paid a premium thereon during the time of her father’s illness. "While, of course, the inference is by no means conclusive, the fact that Green made no claim for indemnity during the four months he lived after the accident is, nevertheless, a circumstance of grave
Green had been a locomotive engineer for many years. One of the medical witnesses testified:
“Cancer may be caused from pressure produced by the vocation that a man follows: as a man that is a locomotive engineer, riding on a train. A man sitting in a cramped position for hours can cause an irritation by years of following that business. That, by irritation, may cause cancer of the kidneys; but that is all in the realm of guesswork — just the same as my answer as to what might have been the cause of the trouble.”
On cross-examination, he testified that:
“All I am undertaking to say in this case is that possibly, if Oscar Green had received a blow, that it might have caused this malignant growth. I would not want to go any further. That is, if Oscar Green received a blow at that time, it might possibly have caused the condition I found there. There was nothing to indicate he had ever received any injury. Many persons in good health have received a terrific injury over the kidney without causing a cancer. We don’t have very many cases of cancer following a very severe blow. The severe blow causes death quicker than the cancer.. In order to cause a cancer, there must be force manifest, and it has to reach the kidney itself. A person that would simply fall, and struck the edge of a cushioned box on the side over the hip, — I would not expect that to cause a cancer. ’ ’
The physician who first examined him testified that, about six weeks after the accident, he located a tumor extending around to the spinal column, and that it gradually grew larger,
No expert testimony was offered by appellant; but it seems to us that the evidence offered by appellees is so indefinite, uncertain, and speculative in its character that the court cannot say that it preponderates in favor of appellees’ theory. The medical experts expressed the opinion, in answer to a hypothetical question, and also gave it as their judgment, that a cancer might be produced by a blow or injury; but they were about equally as emphatic in their statements that it might result from the position assumed by a locomotive engineer while sitting on the seat in the cab. The probabilities in favor of appellees do not outweigh the opposite probabilities, and, as stated, the testimony is not at all convincing. The case is triable de novo, and our review of the evidence is not for the purpose of determining whether it was sufficient to justify the submission of the case to a jury, but for. the purpose of determining the merits of the controversy.
Whether the evidence was sufficient to have carried the case to the jury, we need not discuss. It is our conclusion that there is such a failure of proof to sustain the allegations of the petition that we are driven to a conclusion opposite to that reached by the trial court. Other questions argued by counsel need not be discussed. The judgment qf the court below is— Reversed. ' w