Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1913-10-30
JUDGE NICHOLS sUsTAlNs RAIL.
ROAD LAWYERS MOTION FOR
RETRIAL.
OvERRULES ALL OF THE
OTHER MOTIONS IN CASE
Judge Nichols Sets Aside $14,5o0 Ver.
dict For Mylss ksIIshsr in Sustain.
ing Motion For New Trial-keiIe.
hers Attorney May Accept New
Trial or Appeal to Supreme Court

Judge Clarence Nichols this after
noon sustained the motion of the Iowa
Central's attorneys for new trial in
the case brought by Myles Kelleher in
| the name of J. w. Breen, assignee. In
the ruling that sustained this mo-
ton. Judge Nichols overruled the mo-
tons for the railroad company for ar
rest of judgment and for a judgment
for the railroad company notwith-
standing the jury's verdict of $14,50O
AS result of the courts ruling, the
! plaintiff can retry the case in the dis
trict court. or may appeal on the
courts ruling to the state supreme
court, or he may make an attempt
to get the case in under the federal
employers liability act.
Plead One Thing; Proved Another.
/ The ruling of the court in granting
a new trial is based on the facts de-
veloped at the trial, that the attorneys
for Kelleher and Breen brought suit
under the state statutes. and in fact
stated in open court that the action
was one under the state laws and not
under the federal law. But in the
\
animation of witnesses and evidence
introduced by him. and the cross Sex
animation of the plaintiffs witnesses
by the railroads lawyers. developed
that Kelleher and the Iowa Central
were engaged in interstate traffic
when Kelleher was injured.
This situation developed a variance
between the pleadings and the proof,
that proved disastrous to the plaintiff
i Reconsidered First Ruling
In this ruling Judge Nichols held at
variance with a ruling on much the
same point, made when the railroad
company's attorneys asked for a di-
rected verdict.
The ruling Of Judge Nichols, which is
rather long, says that the motion to
direct a verdict. when the trial was on,
was overruled on the authority Of the
supreme court decision in the case Of
Bradbury VS.. the c. r. l. & p. railroad.
but that on further consideration the
court Is Of the opinion that the Brad
bury case does not apply to all the
facts in the present case.
The opinion continues that 1t il true
that this action is not under the feder-
al employers liability act but under the
statutes Of the state.
mo allegation is made" the opin-
ion says, " that the plaintiffs aseignor,
Kelleher was injured while engaged in
interstate commerce. The petition. for
that reason, is not sufficient to make
case under the federal statute"
Hurt in interstate Traffic.
The opinion goes on to say that the
plaintiffs testimony showed beyond
dispute that Kelleher was hurt while
driving the engine Of a train that had
cars in it from st. Louis and Peoria,
and which was thru train to Mime
apolis, altho Kelleher only pulled the
train part Of the way.
The ruling sums up the opinion Of
the court in the following paragraph:
Here the plaintiff, in making his proof,
made true partly on cross-examination
by the defendant, established without
any dispute whatever that at the time
Of his injury the plaintiffs assignor and
the defendant company We're engaged
in interstate commerce. That being
true, the plaintiff could not recover
under the state law. If injured in in
terstate commerce, his only remedy
was to sue under the federal statute"
The issues in this and the other mo-
/ lions were submitted to Judge Nichols
in arguments Wednesday night. 1t was
presumed then that the court might
take a few days to consider the mo-
tons Judge Nichols remained in this
! city over night and this forenoon, and
while here announced his ruling.