the brother of plaintiff said anything to her as to what the brother and her sister Phemy had done with reference to the mother's disposing of her property or making a will, and to a statement by witness that she afterwards heard a talk between two of her sisters when all were present attending the funeral. And to a question asked concerning this time at the funeral "as to what had been done; what you had caused to be done with reference to your mother's disposing of the property." We said on complaint of these exclusions: 20, 12 N. W. 748, a suit for damages for assault, objection was sustained to the question whether it was, in any way, understood between witness and his father that plaintiff should be assaulted. In Masters' Case, 19 Neb. 458, 27 N. W. 438, a bastardy suit, testimony that complainant was seen going with some one other than the defendant into a house in the nighttime was excluded. In Yates' Case, 25 Neb. 120, 41 N. W. 129, counsel for defendant in a malicious prosecution was not allowed to say whether his client acted on advice of counsel. In Kla"It is urged by appellant that the questions man's Case, 61 Iowa, 752, 16 N. W. 356, the above set out were proper, and that the trial defendant was bound to suffer judgment if court should have permitted them to be answered. If this contention were sustained, it other signatures on a note signed by him would avail the appellant little on this appeal. were genuine, and made the defense that they There is nothing in any of the questions which were forgeries. He was not allowed to say brings before us the particular matter to be whether he heard the others impleaded say admissible, and yet be insufficient to cure the proved. The proposed evidence might have been that their signatures were put on by author- deficiency in plaintiff's case. We have repeatity. In Shellito's Case, 61 Iowa, 41, 15 N. W. edly held that we will not reverse a case upon 572, the question was whether witness had such rulings as are here shown, unless it be made to appear in some manner what the annot, at a stated time, talked with a named swer of the witness would have been. If we witness, and then stated that plaintiff ħad were to reverse this case upon this ground and consented to the cancellation of the contract remand it for the purpose of permitting these with defendant. In Jordan's Case, 71 Ind. questions to be answered, the answers might prove to be wholly negative. This is illustrated 200, involving the extension of a promissory in this record by the fact that one question note, objection was sustained to a question which was allowed to be answered proved to whether consent was given at the time the be a pure negation. If the trial court had suswritten consent bears date. In Porter's Case, were to reverse upon such ruling, such reversal tained an objection to such question and if we 151 Iowa, 280, 131 N. W. 23, a suit on an oral would be based upon an imaginary error and guaranty, a witness was not allowed to say not a real one. The reversal would be rendered what passed between him and defendant re-it would be none the less so though the answers farcical by a subsequent negative answer, and specting future liability on the note. In were affirmative" if the answer "could not Greenough's Case, 9 Iowa, 506, a written change the final result. It was therefore inmemorandum refused may much more readily cumbent upon the plaintiff to make it appear in be presumed to have contained matter bene- some proper way what the purposed testimony was or would be." ficial to the one desiring its introduction than we can presume what the witness at bar would have stated. In Perkins' Case, 28 Iowa, 284, it was much more clear that an answer was sought as to who had affixed a stamp than it can possibly be what answer would have been made to the interrogatory involved on this appeal. And see Whitehead's Case, 85 Ind. 85; Votaw's Case, 62 Iowa, 678, 13 N. W. 757, 18 N. W. 305. There was a statement in writing incorporated in the record, and we said: "And it will be noted there is nothing in such written statement that throws any light on the question what the proposed testimony of the witness was to be. All we learn from such writing is that both Rodney and Phemy made the same statement. What was the statement? This question finds no answer in the record. The appellant, therefore, is in no position to ask a reversal upon these assignments." In State v. Row, 81 Iowa, 141, 144, 46 N. W. 872, defendant and one Campbell were employed in driving teams to deliver and transfer the goods of Hurlbut-Hess & Co. On one evening both were engaged with teams in delivering goods, and the wagon driven by Campbell had on intoxicating liquors. C. W. Logan, the man killed by defendant, was known as one who made a business of searching for liquor unlawfully kept for sale. About 6 o'clock of that evening Logan and another found Campbell on the streets delivering in In Arnold's Case, 155 Iowa, 604, 134 N. W. 101, there was involved an action to set aside a will. Plaintiff testified that the talk referred to in the questions propounded was had about the time the will was made. Objection that it was incompetent, immaterial, and irrelevant as to undue influence was sustained to questions whether or not at this time she had a talk with defendants as to what their mother had done or how things had been fixed, and if there had been such a talk, to state what was said, and when. The witness was then asked whether the same de-toxicating liquors, whereupon Logan arrested fendant said anything to her as to what the mother had done with reference to disposing of her property or making a will. The same objection was again sustained, with the further one that this sought to put in the statement of one legatee to the prejudice of an absent legatee. Like objections were made and sustained to questions whether at that time him without warrant. The team was left with one of Logan's assistants, and Logan and Campbell went to the Hurlbut Company's place of business, where Logan inquired if a permit was held authorizing Campbell to make such deliveries. At this time defendant came in and inquired if Logan had a warrant for the arrest of Campbell. Being "The record fails to show * * that the witness would have testified to any fact of advantage to plaintiff." In Kelleher's Case, 60 Iowa, 473, 15 N. W. 280, we said, again: "We cannot presume that the witness would have given evidence beneficial to plaintiff." told that he had none, defendant said, in sub- | same effect is the Masters' Case, 19 Neb. 458, stance, that Logan had no right to make the 27 N. W. 438. In Klaman's Case, 61 Iowa, arrest without warrant, and told Campbell 752, 16 N. W. 356, we said: to go and deliver the goods, giving Campbell a slight push. Some words passed between defendant and Logan with reference to this interference, and Logan drew his revolver. Defendant also drew, shot Logan twice, and inflicted a mortal wound. It was the theory of the state there was a conspiracy among certain members of the Hurlburt corporation and its employés to resist the efforts of officers and others, engaged in enforcing the law against the sale of liquor, in so far as such efforts might lead to the seizing of liquors in the building of the corporation, or delivery therefrom to patrons, and that the shooting of Logan was the result of such conspiracy. One Hall, a witness for defendant, testified that he had for nine years been engaged with the police force of the city, and was there upon asked: "State what you heard, if anything, C. S. Logan say in respect to what he would do at the house of Hurlbut-Hess & Co., if he had occasion to go there." In whose testimony objection was sustained. In If we may ever assume that an unuttered answer would have been favorable to the interrogator, it would be where the witness is a party, or the attorney of the party. Yet we did not so presume in Arnold's Case, 155 Iowa, 504, 134 N. W. 101, where the quesKlaman's Case, 61 Iowa, 752, 16 N. W. 356, tions were asked of plaintiff himself. the defendant himself was the witness to Porter's Case, 151 Iowa, 280, 131 N. W. 23, the question was one propounded to the appellant on his direct examination. In Yates' Case, 25 Neb. 120, 41 N. W. 129, it was the defendant and his attorney who were not permitted to answer. This is perfectly sound, To this objection was sustained that it was because very often a party testifying as a incompetent, immaterial, and irrelevant. A witness testifies to that which destroys his fairly good guess can be indulged in as to case. If it were presumed that a witness, if what it was proposed to establish by an an- allowed to answer, would answer in a way swer to this question. It is fairly probable to advantage the one calling and interrogatthe expectation was to show defendant knew ing him, there never could have been a case of Logan's declaration as to what he would written declaring that the exclusion of tesdo in the house of the corporation if he had timony would not be reviewed because there occasion to go there; that the declaration in- had been a failure to show prejudice. If volved a threat, and thus bore upon whether there exist a presumption a witness will testhe defendant acted in self-defense, or, rath-tify favorably to the party calling him, that er, whether what he knew of Logan's dec- presumption would always have supplied laration impelled defendant to shoot. Yet, proof of prejudice. If the fact that the witwe said that the exclusion could not be re- ness was not allowed to answer is proof that viewed because though "it is true there might he would have answered favorably if allowed have been an answer not open to the objec- to answer, how was any court ever able to tion, it is equally true there might not." In hold that reversal should be denied for want other words, we held that neither the form of of a showing of prejudice. Without any refthe question nor the whole of the record en- erence to or analysis of authority, it should abled us to judge that prejudicial error had be plain that we cannot have recourse to been committed. Clearly these demonstrate such a presumption as that. The only prethat so far as adjudicated cases speak, the sumption that can be indulged is that the same is true of the question at bar. witness will tell the truth as he understands gate a judicial declaration that a witness IV. There is absolutely nothing in the rec-it. It would be a judicial scandal to promulord to show the witness was able to answer at all, and, if able to answer, he would have said aught to aid the defendant's cause, unless we may presume, from the fact that defendant called the witness, that, if allowed to answer, he could and would have given material evidence beneficial to the party calling him. I have been able to find no adjudicated case holding to such a presumption, and on careful search have found none ex- CLARK v. CHICAGO GREAT WESTERN R. cept such as deny such presumption. Barr's Case, 42 Neb. 341, 60 N. W. 591, 592, it is expressly ruled the court cannot presume "that, if permitted, the witness would have made answers favorable to the party propounding the questions." To the In CO. (No. 30050.) (Supreme Court of Iowa. May 18, 1915.) 1. MASTER AND SERVANT 286-INJURIES TO SERVANT-ACTIONS-JUBY QUESTION. In an employé's action, the question of defendant's negligence in suddenly checking the speed of a train without warning held, under the evidence, for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.] 2. MASTER AND SERVANT 284-INJURIES TO SERVANT-ACTIONS-EVIDENCE-JURY QUES TION. In a railroad employe's action for personal injuries, brought under the federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), the question whether he was engaged in interstate commerce held, under the evidence, for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. 284.] 3. COMMERCE 27-INTERSTATE COMMERCE FEDERAL EMPLOYERS' LIABILITY ACT. Where side tracks had been so far completed that they were used for interstate trains, a servant engaged in repairing them was engaged in interstate commerce, and his action for personal injuries must be maintained under the federal Employers' Liability Act. 27.] [Ed. Note. For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. 4. APPEAL AND ERROR QUESTIONS PRESENTED. 877- REVIEW 1 Where plaintiff, who was successful, did not appeal, error in the court's refusal to submit the question whether a release signed by plaintiff was procured by fraud cannot be re viewed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. 877.] Appeal from District Court, Dubuque County; J. W. Kintzinger, Judge. Action for damages resulted in verdict and judgment as prayed. Defendant appeals. Reversed. Carr, Carr & Evans, of Des Moines, and Geo. T. Lyon, of Dubuque, for appellant. Matthews & Chalmers and Geo. A. Barnes, all of Dubuque, for appellee. LADD, J. The injury complained of was received near Stockton, Ill., and the petition claiming damages is in two counts; the first declaring the defendant liable in consequence of the negligence of its engineer under the provisions of the act of Congress, approved April 22, 1908, known as the Employers' Liability Act, and the second under the common law. The latter was withdrawn from the jury on the ground that: "Defendant company is not liable for injuries received by one of its employés through the negligence of his fellow servant in the state of Illinois." The defendant's line of railway extends from Chicago through Byron, East Stockton, and Stockton on to Dubuque and through Iowa. East Stockton is about 12 or 2 miles east of Stockton, and Kent is about the same distance east of East Stockton. The plat will indicate the construction of the line at and between these several places: NORTH PASSING TRACK servant was capable of consenting to the release held improperly submitted. A train came from the east on the east main track to one of the cross-overs indicated [Ed. Note.-For other cases, see Release, Cent. on the plat in order to reach the west main Dig. 88 109-114; Dec. Dig. 58.] 6. RELEASE 13-CONSIDERATION CIENCY. -SUFFI Payment to a servant for lost time, as well as re-employing him in his original work, is a sufficient consideration for a release. [Ed. Note. For other cases, see Release, Cent. Dig. §§ 21-27, 29; Dec. Dig. 13.] line, and this west main line is disconnected from the line immediately east of it. On the 18th day of November, 1910, the train crew picked up a train of 25 or 26 cars of gravel at Byron, some 40 miles east of Stockton, and moved it westerly until reaching the west main line, and, cutting off the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in so doing without warning, the defendant was negligent. True, a witness testified that there was no such rule, but, as plaintiff had testified there was, this merely put the existence of such a rule in issue. One was introduced reading that: caboose, shoved the cars on a side track. In the morning of the 19th they took the engine and caboose from Stockton to East Stockton, and, going to the yards got what is known as a plow car and seven cars of gravel, took them to the west main line, and, after going west, backed the same to a point near the semaphore and unloaded some of the cars on the track. The gravel fell from the V-shaped bins to the middle of the track, and the plow car coming behind leveled this off. On back-swer to any signal not otherwise provided ing to unload at another place toward the east, with the plaintiff standing on the plow car near the sand box (a sand box three or four feet high was at each end), the conductor and possibly the brakeman gave the engineer a signal to "slow down." As the engineer applied the air to the brakes, the plow car jerked and threw plaintiff from the car across the rails below, and he was seriously injured. [1] I. But two grounds of negligence were submitted to the jury: Whether defendant was negligent (1) in the manner of applying the brakes in response to the slow-down sig nal given by the conductor and brakeman, and (2) in failing to sound the whistle twice as a warning before applying the brakes. Appellant contends that the evidence was insufficient to support either. Though alleged as distinct grounds, the court in the seventeenth instruction said that: "The only questions of negligence, if any, submitted to your consideration, are the allegations of defendant's negligence in carelessly and without warning causing the air to be applied on the engine so severely and suddenly that the speed of the engine and train was checked so suddenly and violently as to throw the plaintiff from the car on which he was riding." And in the twenty-fourth instruction the jury was directed that, in order to return a verdict for the plaintiff, it must find that defendant's employés checked the speed of the engine and train with unusual force and violence, or that under a rule of defendant, or in accordance with the customary practice, the engineer, upon receiving a signal to slow down when on the line, should respond, before doing so, with two short blasts of the engine whistle, and that he omitted so to do, and that because of such failure to give warning, and the sudden and violent jerk of the train in slowing down, the plaintiff was thrown from the cars and injured. In the twenty-fifth instruction the jury was told that if such were not the rule or custom, or if the two blasts were not sounded, or if there was no unusual and violent jerk, the verdict should be for defendant. If such were the customary practice, then the plaintiff might have been found to have had the right to rely upon the signal before there would be any jerk from the service application of the brakes, and, even though there may not have been sufficient evidence to show negligence in the manner of applying the "When a signal (except a fixed signal) is given to stop a train, it must be acknowledged as prescribed by rule 14 (G)." Rule 14 required that two blasts shall "an for." What is meant for a "fixed signal" is nowhere explained, and, moreover, the existence of the printed rule did not obviate a finding by the jury that a response in the manner stated to a slow-down signal was not the customary and usual practice when work ing out on the line. We are of the opinion that the issue as to defendant's negligence, as submitted, was for the jury. [2, 3] II. The court instructed the jury that as the injury was in consequence of the negligence, if any there was, of a fellow servant, recovery might not be had, unless the plaintiff, as well as the defendant, was engaged in interstate commerce. Appellant contends that there was no evidence that the track, when the gravel was being placed, was being used in interstate commerce. Plaintiff's duty as trainmaster was "to be out on the road, keeping things moving, keeping the trains moving, seeing that the men were doing their work right and proper, and anything that might come up." He was then devoting most of his time to the railway between Stockton and Byron in Illinois on account of the congestion of business there, but his employment extended from Oelwein, Iowa, to Chicago, Ill., and he was acting under the direction of the superintendent, as his representative. Though the west-bound track had not been bulletined for use on November 17, 1910, a freight train tied up on the east end of it, and as was testified: "They had orders to tie up there under the 16-hour law, and they had backed down and used the middle cross-over to get in on the west put their train in there on that track. They main track; used the one opposite the East Stockton depot. They put their train on the east end of the west-bound main line; stayed there till the rest was up, about eight hours, and then pulled out on the west-bound track to Dubuque, I presume. The destination of that train was Oelwein. A train also tied up on the bound main on that part of the track east of 18th at Stockton on the east end of the west the middle cross-over at the East Stockton station." Thus this identical track had been actually devoted to the purposes of interstate commerce on two occasions immediately previous, to the accident, and the evidence also disclosed that it had been made use of for no other purpose. As plaintiff was trainmaster and the representative of the superintendent in actual charge of the construction of the new track, it is to be inferred that he was authorized to determine when so far completed as to be ready for use and to direct the use to be That the train crew had attached the engine ants," up to date of the release. In reply the to the cars of gravel and hauled them "up to plaintiff alleged, first, that the release was where the semaphore used to be and unloaded part of the cars on the west-bound main track. procured by fraud in that Dr. Davis, the deThe engine was headed west. I was on the fendant's surgeon, represented to plaintiff train when they left East Stockton for Stock- that nothing ailed him, except a difficulty ton; rode up to the semaphore and stopped with his nerves, and recommended that he there. I should judge that semaphore was about one-third of the way from Stockton to resume employment with defendant and minEast Stockton. When we got there we unload- gle with his former associates, and that this ed three or four cars to patch up the main line. would likely cure him; that he so did in It was my business to show them where to put reliance upon said physician's recommendathe gravel. I don't know whether that line, marked as 'west main line' between East Stock- tion and signed said release in reliance thereton and Stockton, was bulletined for service or on; that the statements of said physician not, but it had been used; was used on the night of the 17th for the purpose of storing the were false, known to be false by him, and train. The crew asked me where they should made with the intention of inducing him to put their train-they had orders to tie up at execute the release mentioned. In addition Stockton-and I told them where to put it, to this, the plaintiff alleged that he was inbecause the other tracks were full of gravel. capable, at the time of signing the release, plow car reached a point near the semaphore, 1 to execute a valid contract. The trial court got off the train, walked along, and told them declined to submit the issue of fraud raised how much gravel to let out so it would not When the engine and six or seven cars and the flood the rails. I walked along that way during by the reply, and, as plaintiff has not appealall the time they were unloading. After weed, we have no occasion to pass on that rulhad unloaded all that was required at that ing (see, however, Haigh v. White Way point, I got on the train and started back for Laundry Co., 145 N. W. 473, 50 L. R. A. 1091, East Stockton. I got on my ladder at the east evidence is insufficient to show that the plaintiff was unable to comprehend what he did at the time of executing the release. The plaintiff testified: end of the plow car. The plow car is an ordi- and cases collected in note), but did submit nary flat car with sand boxes on each end of the question as to whether the plaintiff was it over the trucks and the plow in the center- capable of and did appreciate the conditions double plow pointed up to a point to throw the of the release. Appellant contends that the gravel off the track. There was a crank to raise and lower the plow. When the plow was working, it laid right down on the track, and the shoe of the plow scooped off a space of six inches inside about an inch and a half below the ball of the rail. When it was not in operation there were two to four inches from the bottom of the plow to the top of the rail. We had been distributing considerable gravel in the new yards that day; that is, where the gravel was needed." Other evidence of similar character was adduced. The defendant was engaged in interstate commerce over this line of railway. It had used this particular track on which to store at least two trains actually bound from points in Illinois to Oelwein, Iowa. The construction had been sufficiently completed for that purpose, and what was being done might well have been found to be merely leveling the grade and filling up depressions therein for continued use in interstate commerce. Certainly the jury might have so found under the evidence rather than what was being done was a part of the original construction of the roadbed disconnected from its use, and, if so, there was no error in submitting to the jury whether what was done was in the maintenance of the roadbed being used in interstate commerce or in the original construction of the same. If the former, then plaintiff was engaged in interstate commerce at the time of being injured, and must recover, if at all, by virtue of the socalled Employers' Liability Act of Congress. Pederson v. Railway, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. [4, 5] III. The defendant pleaded the execution of a release dated February 2, 1911, from "all claims, damages, actions, causes of action, or suits at law for or because of any matter or thing done, omitted, or suffered to be done by said company, its agents or serv "I have heard of the rule that employés are required to sign releases before they return to work. I knew there was such a rule. In a general sense, I knew what a release was. Dr. Davis told me at the time Mrs. Clark was with but the nerves, and, in order to get well, I must me that there was nothing the matter with me go back among the men, get back among my old associates, and forget it; told me the only way I would improve would be to get among the Mr. Causey what Davis had told me when 1 men and forget it, get it off my mind. I told went to report for work, told him the doctor said I would get well faster if I went to work. Mr. Causey told me I would have to sign a release. I don't know as I said, 'I know it,' but I might have said, 'I suppose so,' or something of that kind. I knew the nature of the paper I would have to sign was termed a release. anything I didn't already know, when he told I cannot say that Mr. Causey told me me I would have to sign a release. Then he said he would pay me for time lost, and I responded, 'Very well,' or words to that effect. There was no talk about any payment in the That is all the conversation I had with him. future. The only thing I remember was speaking about my eyesight and hearing, and he told me that wouldn't be held against my physical examination. So far as my receiving any more pay if I didn't get well, as the doctor thought I would, there was nothing said, either by me or by Mr. Causey, about receiving any additional compensation. dication to me that, if I did not get well, I a There was no inwould be entitled to any more. According to the doctor's report to me, there was nothing to get well only the nerves. I felt some pain, and should. felt I had not been improving as fast as I * I did not feel I was already well; knew I was not well when I went to talk to Mr. Causey, The doctor told me it was the only way I would get well. I knew I was not well at the time. * * lease when I signed it; did not pay much atI did not read the retention to it. I knew I had to sign it, so I |