Kitteringham v. Sioux City & Pacific Railway Co.

• Citation: 17 N.W. 585,62 Iowa 285
• Parties: KITTERINGHAM v. THE SIOUX CITY & PACIFIC RAILWAY CO
• Decision Date: 08 December 1883
• Court: United States State Supreme Court of Iowa

17 N.W. 585

62 Iowa 285

KITTERINGHAM v. THE SIOUX CITY & PACIFIC RAILWAY CO

Supreme Court of Iowa, Des Moines

December 8, 1883

Appeal from Woodbury District Court.

THE plaintiff alleges in his petition, in substance, that he was in the employment of defendant, performing the duties of a helper in its machine shops, and that he was instructed by the defendant's master mechanic to remove the old brasses belonging to the boxing of certain car wheels and axles which were covered over with poisoned grease, and that plaintiff was dangerously poisoned by the handling of such brasses, necessitating the amputation of the middle finger of his left hand, and resulting in the loss of the use of his left arm and hand. The plaintiff prays judgment in the sum of $ 5,000. There was a jury trial, resulting in a verdict and judgment for the defendant. The plaintiff appeals.

AFFIRMED.

Burnham Hudson & S. H. Cochran, for appellant.

Joy & Wright, for appellee.

OPINION

DAY, CH. J.

I. The plaintiff introduced as a witness one John McKenzie, who testified that he repairs cars for a living, and had about seven years experience in greasing cars, but quit it about seven years ago, and that he is not now employed by the company, and has not been for some time, and that he knows about the substance formed on the boxing of car wheels, but does not know of any poisonous substance that is ever formed on the brasses of the boxes of the car wheels. The witness was then asked this question: "When ought they to be removed?" This question was objected to as incompetent and immaterial, and upon the ground that it is not shown that the witness is competent to judge. The objection was sustained, and this action is assigned as error. Appellant insists that "this question was propounded to show that the brasses should always be removed before they are worn as thin as a knife, before they become broken, or before the old axle grease burns into the broken brass, and thereby causes a poisonous substance, which failure to remove would constitute the elements of negligence." We think, however, that the proposed fact is not competent to be established by the opinion of a witness offered as an expert. The effects of allowing the brasses to become worn thin and broken should be shown. Then the jury would be competent to determine whether it was negligence to fail to remove them before such condition existed. To allow a witness to testify as an expert to such fact, would be to substitute the witness for the jury.

II. This same witness further testified that he knew the custom of railroads in removing these old brasses. He was then asked the following question: "What is the custom in reference to the time when they should be removed--before they get so they break, or afterward?" This question was objected to, and the objection was sustained. The custom of railroads as to the removal of the brasses before they break is not material. They might remove them before they become so thin as to break, for the purpose of preventing injury to the axles, or accidents to the train. The real question in this case is, do the brasses accumulate a poisonous substance if not removed before they become so thin as to break? The custom of railroads as to the time of removal could throw no light upon this question.

III. The appellant complains of the giving of the third instruction, as follows: "The main questions for you to determine herein, and to which your attention is directed are as follows: 1. Was the plaintiff directed to go and remove, and did he go and remove, the brasses from the car wheels at River Sioux, in obedience to a direction of the master mechanic? 2. Were the brasses so removed, at the time of removal, poisonous? 3. If they were poisonous, then did the defendant, through its officers, whose duty it was to keep the cars in repair, have knowledge that the same were poisonous, or would said officers by the exercise of ordinary care have had such knowledge? 4. If the brasses were poisonous, then did plaintiff have knowledge that they were poisonous, or would he by the exercise of reasonable care have had such knowledge? 5. If plaintiff was injured, then did his injury occur by reason of the impurity of plaintiff's blood? If you answer the first, second and third questions in the negative, then there can be no recovery for plaintiff. If you answer the fourth in the affirmative, there can be no recovery. If the fifth is answered in the affirmative, there can be no recovery." Appellant insists that the fourth division of this instruction is erroneous, in that it holds that, if the employe could have by ordinary care, discovered the poisonous condition of the brasses, he cannot recover. Appellant also insists that the fourth instruction of the court is erroneous, which in substance directs the jury that plaintiff cannot recover if he knew, or by the exercise of that care with respect thereto which a reasonable man, under the same circumstances, would have exercised, could have known, that the brasses were poisonous. In support of this objection, appellant relies upon Muldowney...