Breen v. Iowa Central Railway Co.

(dissenting), I. After the first trial of this cause, a reversal ensued. There was a second trial. In the course of cross-examination of the person whose injuries were the basis of the suit, it was made to appear that his injuries occurred while he was engaged in interstate commerce. Thereupon, defendant moved a directed verdict, on the ground of variance, because the petition charged the injury occurred while said person was engaged in intrastate commerce. At the same time, plaintiff moved that this evidence be stricken out. Both motions were overruled. On verdict’s being returned for…