141 Iowa 350 | Iowa | 1908
The insured had gone to the post office to mail a letter, but, upon ascertaining that the mail had been sent to the train, proceeded past the Bates House to the railway, where he took a well-beaten path between the main tracks to go to the depot. After having gone a short distance, he noticed a freight train coming down the east track, and also a cloud of steam and smoke. His testimony was to the effect that he remembered having a purpose of getting out of the way of these, and then all was blank. Mrs. Shelton testified that she saw him “just behind the caboose of a freight train passing on the east track and ahead of g passenger coming the opposite direction” on the west track; that she “saw him again just as he was crossing the last rail west,” and then on the ground after the collision; that' he was thirty or forty feet behind the caboose, and was crossing the tracks “at the public crossing that crosses the tracks . . . where the public highway crosses the railway.” Her testimony was not adduced on the former trial, and the only issue determined in this court was that the place of the injury was on the roadbed. 133 Iowa, 224. Upon remand a sub
It is also urged that the substituted petition asserted the permanent character of the injuries. If so, this was withdrawn by a subsequent amendment thereto, distinctly averring that his disability Avas not permanent and that he was gradually recovering.