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United States v. Norfolk & W. Ry. Co

Works v. Oconto City Water Supply Co. (decided January 6, 1902, by the supreme court of the United States, and reported in advance sheets of the opinions of the United States supreme court) 22 Sup. Ct. 111, 46 L. Ed.-. In this case the opinion of the court in writing was made a part of the record by the order entered on June 15, 1901, and the order specifically says that, "in conformity to the views in said opinion expressed, doth order and adjudge that the peremptory writ of mandamus herein be, and the same is, denied, etc. If, therefore, the opinion of the court is ever a part of the record, it is in this case. Whatever may be the true scope of the rule when applied to appeals and writs of error (and I think the weight of recent authority is in favor of the doctrine that the opinion of the court may be looked to, to determine the questions in controversy), a somewhat different question is presented when the matter at issue is not whether the court committed any error in its findings, but whether it did in fact decide a certain matter, and whether that matter was in dispute. In such a case I think the opinion of the court is properly a part of the record, and might be looked to in order to ascertain what was decided. But in this case it is not necessary to do this. The evidence, or a great part thereof, has been made part of the record by bills of exception, and shows that the material question submitted to the court for decision was the legality and reasonableness of the "oven basis" of car distribution. See bills of exception Nos. 1 and 2, record. It also appears, upon the hearing, and after the evidence was submitted, that the relator presented to the court II propositions of law, and requested rulings thereon in his favor; that the court overruled each and all of said propositions of law, and refused to affirm any of them. Several of these propositions of law embody the idea that under the evidence in the case of the relator, as a matter of law, is entitled to have awarded a writ of mandamus as prayed. The refusal to affirm these propositions is made the basis of numerous exceptions in the record. The tenth proposition refers in direct terms to the so-called coke-oven basis of distribution, and the eleventh proposition requested the court to find, as matter of law, that it was the duty of defendant to distribute its available cars upon a basis therein set forth. These propositions, all of which were rejected, taken in connection with the evidence detailed and set forth in the several bills of exception, show that the substantial matter in controversy was whether the so-called coke-oven basis of distribution, as operated by the respondent, was a legal and reasonable one; and I think that the court held, and intended to hold, as matter of law, that it was, and, by denying at the hearing all the propositions of law asked by relator, gave evidence, negatively it may be, of his findings of law upon the evidence. I may say further that the relator, in his twentieth exception (page 130 of record), evidently adopts

United States v. Norfolk & W. Ry. Co

the view that the court ruled and decided that the so-called coke-oven basis of car distribution did not work an unjust discrimination against relator. Quite a number of authorities were cited by counsel for the respondents to the proposition that the breadth of the issue determined by the court in rendering judgment in the former proceeding is not determined by the pleadings, but that the evidence heard on the trial may be looked to for the purpose of determining whether or not the questions in the two suits are the same. Black, Judgm. § 614; Wood v. Jackson, 8 Wend. 9, 22 Am. Dec. 603; Smith v. Town of Ontario (C. C.) 4 Fed. 386; Nesbit v. Independent Dist., 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562; Wandling v. Straw, 25 W. Va. 692; Sayre's Adm'r v. Harpold, 33 W. Va. 553, 11 S. E. 16; Harshman v. Knox Co., 122 U. S. 306, 7 Sup. Ct. 1171, 30 L. Ed. 1152. I think this is the correct doctrine, and applying it, and looking to the evidence in the former proceeding, we easily ascertain that the whole question was as to whether the system of car distribution adopted by the railway company in the Pocahontas coal field was unjust and discriminative against relator.

A point was made by the relator in argument to the effect that the present suit should not be abated even though I held that the record showed that the former suit involved, as the great question, the so-called coke-oven basis of car distribution, because the present proceedings, in addition to charging that said basis is unjust and discriminative against relator, also charge a number of other matters violative of the interstate commerce act. For example, on page 9 of the printed alternative writ it is charged that the railway company has furnished transportation to relator so irregularly as to disorganize the force at the mine and subject the relator to disadvantage, while no such irregularities are inflicted on other shippers, to wit, Castner, Curran & Bullitt. I confess that this question has given me great difficulty, as it seemed possible that, although one of the questions presented by the present alternative writ had been decided adversely to relator, still, if the specific violations charged by him in it were not all referable to the system or basis upheld by the former decision, they might present a case for relief. I have made diligent search, in the limited time I have had for the investigation of the intricate questions presented, for authority directly upon this proposition, and I have found one case which seems directly in point. In Buffum v. Tilton, 17 Pick. 511, it was held, in a case involving the pendency of a former suit between the same parties, that "where it appears by inspection that the cause of action in the second suit is, in a material and substantial part, the same as in the first, although other causes of action are inserted in the second, it is, within the meaning of the rule of law, an action instituted for the same cause of action, and is a good cause of abateUpon reflection it has seemed to me that this

Pence v. Wabash R. Co

decision is founded in wisdom, and I therefore adopt and follow it.

A further contention is made by the relator that it is a non sequitur that because the oven basis was reasonable in January, 1901, it is reasonable now; but I think, if it was not violative of law then, it cannot be now. If conditions have so changed that such basis is no longer reasonable or legal, such change should be averred, as otherwise the principle of res adjudicata between the parties is as applicable in the case of car distribution as in the case of any custom or usage of trade, or as I believe, in any other case,-even one involving the construction or validity of a positive law.

For the reasons given, I find for the respondents upon the issue joined upon the plea in abatement; and, so finding, it is unnecessary for me to consider the other matters presented.

PENCE V. WABASH R. Co.

(Supreme Court of Iowa, April 10, 1902.)

[90 N. W. Rep. 59.]

Injury to Passenger-Appeal-Review.

Though, in an action against a railroad company for injuries sustained by a passenger, the greater number of witnesses support defendant's theory of the manner in which the injuries were received, on appeal the supreme court cannot weigh the preponderance of evidence, such determination being with the jury.

Same-Excessive Verdict.

Where, in an action against a railroad company for injuries sustained by a passenger, there is evidence of permanent disability, a verdict for $1,750 is not excessive.

Same-Damages-Pain and Suffering.*

In an action against a railroad company for injuries sustained by a passenger, pain and suffering are to be considered as elements of damage.

Same-Same-Loss of Earning Capacity.

In an action against a railroad company for injuries sustained by a passenger, it was proper to admit testimony as to an arrangement plaintiff had with her daughter, whereby plaintiff earned her living, her injury being such as to render her incapable of earning her living under such contract.

Same-Evidence-Harmless Error.

Where, in an action against a railroad company for injuries, evidence regarding plaintiff's health before the accident, not strictly rebuttal in character, was admitted in rebuttal, over defendant's objection, it not appearing defendant was prejudiced, the order of the admission of evidence was no ground for reversal of a verdict for plaintiff.

Same-Contributory Negligence-Getting Off Moving Car.

In an action against a railroad for injuries, defendant requested an instruction that if plaintiff, having stepped on the first step of one of the cars, and before getting into the car, attempted to get off, whether the train was in motion or not, and fell while attempting to

*See Schenkel v. Pittsburgh & B. Traction Co. (Pa.), 22 Am. & Eng. R. Cas., N. S., 904, and foot-note.

Pence v. Wabash R. Co

get off, or just after getting off, and was injured, defendant was not liable for the injuries. The court gave the instruction, with the addition, "Unless she was directed to get off by an employee of defendant in charge of the train, and obedience to such direction would not lead her into any apparent danger, such as an ordinarily prudent person would not assume": held, that the charge, as given, was a correct statement of law.

Same-Same-Boarding Train.

Defendant requested the court to charge that if plaintiff undertook to board the train while in motion, and was injured, she was guilty of contributory negligence, and the court added, "Unless she was directed by some employee of defendant in charge of the train, and her obedience to such instruction would not lead her into apparent danger, such as a prudent person would not assume": held, that the instruction as given was a correct statement of the law.

Appeal from district court, Davis county; F. W. Eichelberger, Judge.

Action at law to recover damages for injuries sustained by plaintiff while attempting to board defendant's passenger train. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Affirmed.

Geo. S. Grover and S. S. Carruthers, for appellant.
Payne & Sowers, for appellee.

DEEMER, J. Plaintiff went to Bloomfield, a station on the defendant's line of road, to board a passenger train, northward bound, for the town of Belknap. While there she was injured by being thrown, or falling, on the station platform. She claims that, as she was about to board the cars, the defendant's brakeman directed her to go further ahead and board the cars at the next opening; that she did as she was bidden, and after mounting the steps was again notified by the brakeman not to enter the car, but to get off and go to the next opening ahead; that she started to obey the order, and just as she was in the act of alighting the train started with a sudden jerk, threw her on the platform, broke her arm, and caused the other injuries of which she complains. Defendant denies these claims, and says that plaintiff's injuries were due, either to plaintiff's attempt to board the train while in motion, or to her swooning away from fright or excitement after she had safely alighted from the train. A number of special interrogations were submitted to the jury, the answers to which negatived the defendant's claim, and a general verdict was returned for the plaintiff.

Defendant contends that neither the answers to the special interrogations nor the verdict have support in the evidence. That there is a conflict in the testimony is conceded, but the contention is that the great weight of the evidence is with the defendant. While it is true that the greater number of witnesses support the defendant's theory, yet it is not our province to weigh the testimony and determine the preponderance. That, as counsel well know, is for the jury.

Claim is made that there is no evidence of permanent dis

Pence v. Wabash R. Co

ability, and that the verdict is excessive. We do not agree with counsel on either proposition. There was evidence of permanent disability, and the size of the verdict, it being for $1,750, does not indicate passion or prejudice. Other matters than impairment of earning capacity were proper to be considered, e. g., pain and suffering.

Testimony as to the arrangement plaintiff had with her daughter and son-in-law for her board was properly admitted in evidence. Her injury was such as to forfeit her claims under this contract and destroy her capacity to earn a living.

Testimony was received in rebuttal over defendant's objection regarding the condition of plaintiff's health before receiving the injuries of which she complains. While not strictly rebuttal in character, the evidence was competent, and relevant to the issues, and we do not reverse because received out of order. Defendant did not ask permission to meet this evidence, and no prejudice resulted.

2. Defendant asked two instructions, which were given, with modifications shown in italics, as follows:

"(13) If the plaintiff, having stepped upon the first step of one of the cars of train in question, and before getting into the car, attempted to get off the same, whether the train was in motion or not, and fell while attempting to get off, or just after getting off, and received the injuries complained of from such fall, then the defendant is not liable for such injuries, unless she was directed to get off by an employee of the defendant in charge of the operation of said train, and obedience to such direction would not lead her into any apparent danger, such as the ordinarily prudent person would not assume."

"(18) If the plaintiff undertook to board the train in question while it was in motion, and by reason thereof got injured, then she is guilty of contributory negligence, and cannot recover in this case, unless she was directed by some employee of the defendant in charge of the train, and her obedience to such instruction would not lead her into apparent danger, such as an ordinarily prudent person would not assume.

It is contended that these modifications were erroneous, because incorrect statements of law, and for the further reason that there was no evidence to sustain them. There is no question in our mind that they announce correct abstract propositions of law. Indeed No. 18, without the modification, was more favorable to defendant than it was entitled to. Galloway v. Railway, 87 Iowa, 467, 54 N. W. 447, 58 Am. & Eng. R. Cas. 245. Moreover, the whole matter was covered in instruction No. 19, and defendant has no cause for complaint. No. 19 was as follows:

"(19) Even if defendant's train was not stopped a sufficient length of time to enable plaintiff to get aboard said train safely, and if plaintiff attempted to get aboard of said train while in motion, and was thrown from the train because of said attempt to get aboard the train while in motion, and was

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