Butler v. Chi., B. & Q. R. Co.

• Decision Date: 24 January 1893
• Citation: 54 N.W. 208,87 Iowa 206
• Parties: BUTLER v. CHICAGO, B. & Q. R. CO.
• Court: Iowa Supreme Court

87 Iowa 206

54 N.W. 208

BUTLER

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Iowa.

Jan. 24, 1893.

Appeal from district court, Union county; H. M. Towner, Judge.

Action by plaintiff, as administratrix of John Butler, deceased, for damages arising from the killing of said Butler by defendant.Jury trial.Verdict and judgment for plaintiff.Defendant appeals.McDill & Sullivan, for appellant.

Jas. G. Buel and Thomas L. Maxwell, for appellee.

KINNE, J.

1.Plaintiff, in substance, charges that on March 2, 1889, John Butler, in the discharge of his duty as an employe of the defendant, went between and under certain locomotive tanks of defendant, to couple them, preparatory to their being moved; that there was then attached to one of said tanks a locomotive, in charge of an employe of the defendant who was unskilled, careless, and negligent, and that he carelessly and negligently moved, shoved, jammed, handled, and run said tanks upon and over said Butler, thereby causing his death; that said Butler was without fault or negligence on his part.Defendant denies every allegation in plaintiff's petition.Denies that deceased was at the time of his death working in the employ of the defendant.Denies that at the time and place alleged in the petition it placed one of its locomotives in the hands of an unskilled, careless, and negligent engineer.Denies that the locomotive and tanks were unskillfully, carelessly, and negligently moved, shoved, jammed, handled, and run upon deceased.Alleges that said work so far as it was authorized and done by employes of defendant, was done with skill and care, and without any negligence; that deceased, by his own gross negligence and want of care, contributed to and caused his death, and the same was in no way due to any neglect or want of care on the part of defendant; that it was no part of deceased's duty to couple locomotive tanks.

2.It appears that the deceased had for several years been in the employ of defendant company; that for the two years prior to his death he had been what was called a “clinker man.”He was at the time of his death 37 years old.He was a small man, and lame in one hip.His habits were good.He was very industrious, and his pay amounted to about $45 or $46 per month.His ordinary duties, as clinker man, appear to have been performed in connection with an associate, and were as follows: When an engine came in from its run, it was taken by a man called the “yard hostler” to the clinker pit, where the clinker men knocked out the fire, and scraped the ashpan.The engine was then backed up to the water tank, where these same clinker men gave it water.It was then moved a little further, and they gave it sand.

3.One Carter, a witness for the plaintiff, testified, against the objection of defendant, that “it was always the custom of the clinker men to help the hostlers.”Defendant insists that the admission of this evidence was error, because Carter was not shown competent to prove a custom, and the evidence did not tend to show a general custom, but only the knowledge of the witness as to what he saw the men do.The witness had been in the employ of the defendant two years.It was his duty to call engineers and firemen who were wanted to go out on a run.His headquarters were at the roundhouse office.Butler's headquarters were at the clinker pit, west of the roundhouse.No reason is shown why this witness, by reason of his avocation, and the location of his headquarters at the roundhouse, near the clinker pit, was not competent to speak with certainty as to the work the clinker men did.Both before and after he gave the answer which is objected to, he, without objection, testified that it was the duty of the hostlers to move the tanks; that, when a tank was to be moved, they told the hostlers, and they and the clinker men moved it; that the clinker men always went down to help move the tanks.And on cross-examination he testified: “I know the clinker men went down to help the hostlers get out the tanks.I cannot say, really, whether it was their duty or not.I know they did it.”And again, on redirect examination, he says: “The hostlers would always direct a clinker man to help move a tank.”It will be seen that, in effect, the witness testified, without objection, several times, to the same facts as are disclosed in the answer which is objected to.Under such circumstances, even if the answer in controversy was objectionable, it could not prejudice defendant.

4.Witness Payden, on cross-examination, was asked as to his opinion as to the safest and best manner of making a coupling of locomotive tanks.His testimony with reference thereto was stricken out on plaintiff's motion, the court remarking: “The motion will be sustained as to what this witness would do under a certain set of circumstances, or what he thinks would be best under certain circumstances.That is a matter for the defendant to bring out in his part of the case.”The ruling of the court was right.The evidence elicited was in no sense proper to be brought out in cross-examination.The witness did not see Butler when he was killed.The question which called out the answer did not relate to anything he had testified to in chief.It was, in fact, foreign to that examination.

5.An exception was taken to the court's refusal to let witness Holland testify as to the skill of Engineer Kerber, who was running the engine at the time Butler was killed.The ground of the exclusion of the evidence was that it called for an opinion of the witness,--not for any fact.It is said by appellant that the question as to whether the engineer was skilled in his business was one of fact.If that be conceded, it is certainly one of the ultimate facts for the jury to find in the case.It seems to us that when the jury were advised as to the age of the engineer, the extent of his experience, the nature and extent of his duties, and other proper facts, they were capable of determining intelligently as to whether he was a skilled engineer.True, one of the material allegations of the petition is that he was unskilled; but we do not think it is competent to prove that he was skilled by the testimony of a witness who gives his opinion to that effect.If, however, we should concede the rule to be as is claimed by defendant, still there was no prejudicial error in the ruling, as, at a later stage in the trial, the defendant's foreman of engineers testified, without objection, that he had thoroughly examined the engineer, and that he was a competent and skillful engineer for the position of hostler.No evidence was offered to contradict this.

6.Witness Holland, for defendant, on redirect examination, testified that one S. A. Eckerson called on him, and advised him to see Mr. Buel, (one of plaintiff's attorneys.)He was then asked: “What relation did Mr. Eckerson sustain to this case?Did he come to you from the plaintiff, or represent himself to be from the plaintiff, in any way?”This was objected to as not the proper way to establish agency.Counsel for defendant, in response to a question by the court, said he did not know that he could show anything touching his agency, except his statements, whereupon the court refused to allow the witness to answer.There is no doubt as to the correctness of the ruling.Plaintiff could not be bound by the statements of Eckerson, who, so far as the record shows, was a stranger to her, having no authority whatever to speak or act in her behalf.Surely a party's rights cannot be permitted to be prejudiced by the statements of one not shown to have any authority to act, and who, for aught that appears, may be a mere meddler in that with which he has no concern.

7.Plaintiff, when recalled in rebuttal, was asked, on cross-examination: “What did Eckerson say to you about using this man Holland?”An objection was sustained to the question, as not being proper cross-examination.The witness had been examined in chief with a view of impeaching the defendant's witness Holland.She had not been asked anything relating to Eckerson.The proposed evidence was clearly not proper on cross-examination.

8.One Pennington was a witness for plaintiff, and testified to seeing Butler under the tanks just before he was killed.The accident appears, without conflict, to have happened in the Creston yards between 10 and 11 o'clock on March 2, 1888.Defendant showed that Pennington was fireman on a freight train which arrived in Creston that day at 3:45 P. M.This evidence was elicited from the engineer of said train.Defendant offered in evidence the book kept by it, in which said engineer, and also the conductor of the second section of said train,...