80 Iowa 172 | Iowa | 1890
To our minds, there is a plain conflict of testimony on this branch of the case. Pliney Jewell, in his testimony, says he heard the train coming from the east, and heard it whistle for the second crossing, east of where the accident occurred ; that he was on a load of hay, with his team standing, and he was watching the train. He says : “I watched the railroad, and watched the train. I did not hear it whistle again, after the time I have mentioned, until it was right by the crossing; on the crossing ; just several toots right together.” He then said : “That was the first whistle I heard after passing the second crossing east of there.” This testimony would have been no more positive nor stronger if he had said the train did not whistle after passing the second crossing. Such a statement would have meant no more than that he did not hear it. His sense of hearing in such a case would be his only means of knowledge. To this may be added the testimony of the plaintiff that, he was listening and looking for trains, and did not hear either alarm. This testimony is plainly in conflict with that of the defense, which is to the effect that both alarms were given. If we concede that, to our minds, the testimony preponderates for the defendant, we are not justified in reversing.
It is claimed that this case, in many of its facts, is like that of Haines v. Railway Co., 41 Iowa, 227, in
IY. A point is argued as to sustaining an objection to a question to one Mitchell, a witness for defendant; but, from a pencil noting on the margin of appellant’s argument, we understand that the point is abandoned, because practically covered by other evidence.
Affirmed.