98 Iowa 188 | Iowa | 1896
Plaintiff is a stock shipper, and in the year 1887, resided at Hopkinton, in Delaware county. In September of that year, he shipped two cars of stock from the place of his residence, over defendant’s line of road, to the town of Defiance, in Shelby county, — a point a considerable distance west of the town of Hopkinton. A stock contract was issued by the defendant to the plaintiff, which provided for the transportation, of the stock to its destination, and also provided for the free passage of one man going with the stock to the place of its destination, and ret urning to the point from which the shipment was made. The material parts of the contract are as follows:
“From Hopkinton, Iowa, to Defiance, Iowa.
“Parties actually in charge of and accompanying*190 within-named stock, must write their own name m ink here.
................................“Peter Milroy.
“* * * The above named is entitled to return pass Defiance to Hopkinton, Iowa.
“S. W. Wheeleb., per A.”
It seems that defendant had two lines of road from Hopkinton to Defiance, — one via Monticello, Anamosa, and Paralta, and the other via Monticello, Oxford Junction, Martelle, and Paralta. The following diagram will best explain the situation:
It is said by appellant, (1) that there is no such issue presented; (2) that there is no sufficient evidence to establish any such custom or usage; and (3) that, if it ever existed, it did not enter into plaintiff’s contract, because he had no notice thereof.
Now, without setting out plaintiff’s numerous pleadings, it is sufficient to say, that we think he did
IT. Appellant argues that the verdict is contrary to the twenty-fifth instruction above quoted. We have already said, that there was sufficient evidence on the question, to take the case to the jury, and will add nothing further.
VI. Appellee was permitted to prove by a witness, in rebuttal, that one Price, a conductor on the Anamosa train, said that plaintiff’s contract was as good as wheat, and that, if he was in Milroy’s place, he would see why he was put off the train. It is insisted that this was error. It appears that the conversation between Price and plaintiff was called out by defendant in an attempt to show that plaintiff knew there was no such custom as claimed. On re-examination of plaintiff he was permitted, without objection, to state the whole conversation, and he gave it just as the witness did who was produced in rebuttal; so that there was no prejudice, in any event. After this, however, Price gave his version of the conversation, but denied that part of it last above referred to. Plaintiff, in rebuttal, then introduced the witness whose testimony is objected to. We think there was no error.
VII. Lastly, it is said that the damages are excessive. While they are quite large, in view of the actual physical injuries sustained, yet, because of the various other elements of damage which may be considered in such cases, we do not feel justified in interfering. We discover no prejudical error, and the judgment is-AFFIRMED.