Bryce v. Chi., M. & St. P. Ry. Co.
| Decision Date | 15 January 1906 |
| Citation | 105 N.W. 497,129 Iowa 342 |
| Parties | BRYCE v. CHICAGO, M. & ST. P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; B. H. Miller, Judge.
Action at law to recover damages for personal injuries received in defendant's service. There was a verdict and judgment for defendant and plaintiff appeals. Reversed.F. L. Anderson and Dawley, Hubbard & Wheeler, for appellant.
J. C. Cook and H. Loomis, for appellee.
Johnson was in the defendant's service as a railway brakeman. At the time of the accident he was employed on a freight train moving from Marion to Ottumwa. The train was a heavy one and being pulled by two engines. On approaching the station at Sigourney, Johnson, acting as he claims in the line of his duty as brakeman, went out upon the top of a box car at or near the rear end of the train and passed from car to car in the direction of the engines. In the course of this trip he was suddenly precipitated forward from the top of a box car down upon a flat car or coal rack immediately in front of the car from which he was thrown, and sustained the alleged injuries on which this action is based. The negligence charged against defendant is: (1) In the unnecessary and unusual application of the air brake by the engineer, and the sudden and violent stopping or retarding of the speed of the train, whereby Johnson was thrown forward from the box car; (2) in failing to have a sufficient number of the cars equipped with efficient automatic brakes; and (3) in employing and continuing in its employment an incompetent and reckless engineer. Issue was taken by the defendant upon all the plaintiff's allegations of negligence, and the cause was tried to a jury. The exceptions argued by appellant are too numerous for discussion in detail without unduly extending this opinion, and we will confine our attention to those questions which seem to be decisive of the appeal.
1. Among the witnesses testifying in behalf of appellee was its car accountant at the general offices of the company in the city of Chicago, Ill. It is conceded that this man had no personal knowledge as to what cars composed the train and had never examined them, yet he was permitted to testify in great detail as to their equipment with air brakes. He was also allowed to give it as his opinion that the “foreign cars,” or cars of other roads making up a part of the train, “must have been” thus equipped. Each interrogatory calling for this evidence was objected to at the time, and the objection was overruled with a suggestion on part of the court that, if defendant did not make it competent, it would “go out.” At the close of this witness' testimony the plaintiff renewed the objection and moved to strike the answers which had been given. The objection and motion were overruled with the same reservation by the court. That the testimony was incompetent and its admission erroneous is too clear to require argument. If a witness may be heard to testify to the physical condition or equipment of cars which he has never seen or examined, then all the rules against hearsay evidence and mere conclusions and opinions may as well be blotted from the books. The witness was not called, nor did he testify as an expert as to the manner in which freight cars in general are constructed and equipped, but he undertook, from the reports and records to be found in his office and from his knowledge of freight cars in general, to tell the jury just how these particular cars which he had never seen were or must have been equipped. It is hard to conceive on what theory this matter could have been offered or admitted in evidence, or how it could have been made competent for any purpose. When the witness clearly disclosed that he had no personal knowledge of the facts to which he assumed to testify, then there was no possible way of making his answers competent over the plaintiff's objection, and they should have been ruled out. It is said, however, that conceding the incompetency of the evidence plaintiff should have renewed his motion to exclude it at the close of the trial, and failing so to do the objection is waived. We think this case does not call for an application of the rule relied upon by the appellee. The authorities cited go to the effect that the mere order of the introduction of evidence is within the discretion of the court, and, where the testimony offered is such as may become competent by making a proper preliminary showing or laying the proper foundation, the trial court may within reasonable bounds permit a change in the usual and natural order of proof. Cramer v. Burlington, 42 Iowa, 319; Rutledge v. Evans, 11 Iowa, 287;Dorr v. R. R. (Iowa) 103 N. W. 1003;Lundvick v. Ins. Co. (Iowa) 103 N. W. 970. But where the testimony offered is in its very nature inadmissible upon any conceivable showing, we think there is no rule or precedent for holding that the party who has made timely objection to its introduction, and thereafter has renewed his objection by motion to strike, shall be deemed to have waived the error, because he fails to repeat the motion. In our judgment such a rule would impose an unnecessary, not to say unfair, burden upon the party prejudiced by the error complained of. It is further urged by the appellee that the error was without prejudice, because the same matter testified to by the car accountant from hearsay was afterward shown by a witness who spoke of his own knowledge. This contention is but another way of saying that, so long as there is any evidence given to the jury of an alleged material fact, the admission of wholly incompetent evidence of the same fact is error without prejudice. No authority to which our attention has been called goes to this extent, and we think the error complained of was not cured. In view of the record as a whole, we should perhaps be disinclined to reverse the judgment below on this ground, but, in view of the necessity of a new trial for reasons...
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