Canfield v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 15 May 1909
• Citation: 121 N.W. 186,142 Iowa 658
• Parties: JOHN CANFIELD, by Letta Canfield, his next friend, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

121 N.W. 186

142 Iowa 658

JOHN CANFIELD, by Letta Canfield, his next friend, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 15, 1909

Appeal from Iowa District Court.--HON. R. P. HOWELL, Judge.

ACTION at law to recover damages for personal injuries sustained by John Canfield, a minor, while in the defendant's employ as a sectionman. Defendant answered by a general denial. Trial to a jury, verdict and judgment for plaintiff in the sum of $ 49,000, and defendant appeals.--Reversed and remanded, unless remittitur be made.

Reversed.

Carroll Wright, J. L. Parish and C. E. Vance, for appellant.

Leach & O'Brien and Wade, Dutcher & Davis, for appellee.

DEEMER J. LADD, J., Concur.

OPINION

DEEMER, J.

On January 20, 1906, plaintiff, then a minor eighteen years of age, was employed as a sectionman by defendant; and, while riding upon a hand car with other employees in the performance of his duties under the orders and personal supervision of the foreman of the section crew, the car upon which he was riding was struck by a freight train coming from the south, at what is claimed was a high and dangerous rate of speed. The day was a very foggy one, and the engineer of the freight train testified that he could not see over fifty feet ahead of his engine. Plaintiff claims that the train was run without signals, and without reference to the safety of men were known to be rightfully on the track in the performance of their duties. The headlight on the engine was not burning, and it is claimed that no precautions were taken for the safety of employees. The negligence charged against the defendant in the original petition was as follows "(1) That the said extra freight train was operated upon said line of railway without any notice to, or knowledge upon, the part of said sectionmen; (2) that the regular train which went north while the section crew were eating their dinner at Bryantsburg failed to carry signals to indicate that an extra train would follow, as it was charged was the usual and ordinary custom in the operation of trains on the defendant's road; (3) that the train with which said hand car collided failed to carry a headlight on the front part of the train, as it was alleged it should have carried in accordance with the rules of the defendant company; (4) that the employees of the defendant in charge of said train with which the said hand car collided were negligent in failing to whistle for a crossing which it was alleged was located about forty rods north of where the said train struck the said hand car, or to ring the bell, all as required by the statute; (5) that the persons in charge of said train failed to whistle for a crossing alleged to be located some distance south of where said collision occurred, or to ring the bell continuously until such crossing was reached; (6) that the persons in charge of said train were negligent in that they operated it at too high a rate of speed; (7) that the persons in charge of said train failed to give signals, from time to time, of the approach of said train to warn persons who might be upon defendant's track; (8) that the defendant was negligent in failing to provide and promulgate suitable and adequate rules governing the conduct of men in control and operation of trains in a fog, so that men upon the section would be advised in some way of the approach of trains so they could protect themselves from injury." In an amendment to the petition plaintiff struck out the first, second, fourth, fifth and eighth allegations of negligence so that the case was for submission on the third, sixth and seventh specifications.

In submitting the case the trial court copied the original petition, making no reference to the amendment to the petition, and also copied the substance of the defendant's answer. This statement of the issues was followed by this instruction: "From the foregoing statements of the claims made by the parties, and governed by these instructions, you will proceed to determine as to whether or not plaintiff is entitled to recover. The burden of proof is upon the plaintiff to establish his cause of action and the liability of the defendant by a preponderance of the evidence; and, if he has not done so, he can not recover." Parts of the fifth, seventh and eighth instructions given by the court read in this wise:

As stated, the burden of proof is upon the plaintiff to establish his cause of action and the liability of the defendant by a fair preponderance of the evidence. Now, therefore, before the plaintiff can recover for any injury sustained by him, if any, he must show the defendant, through its agents or employees, was guilty of some negligent acts of commission or omission which were the direct and proximate cause of the injury, if any; in other words, that the defendant was guilty of negligence. You will therefore proceed in the light of these instructions to determine as to whether or not the defendant, through its agents or employees, was guilty of negligence in the handling of said extra train upon the date of the alleged injury, and at the time of the alleged accident, and whether or not such negligence was the direct and proximate cause of such injury, if any, and whether or not the plaintiff was guilty of contributory negligence as heretofore defined; and, if you find that said injury, if any, was caused by the negligence of defendant, and without any fault or neglect on the part of the plaintiff which contributed to said injury, if any, then you will find for the plaintiff, but if you do not so find, you will find for the defendant. (8) You are instructed that, before you can find for the plaintiff, you must not only find that the defendant was guilty of some one or more of the acts of negligence claimed, and that such act of negligence was the proximate cause of his injury, but you must also find, etc.

In this connection the defendant asked the court to give the following instruction, which request was refused: "You are instructed that, before you can find for the plaintiff, you must not only find that the defendant was guilty of some one or more of the acts of negligence set out in his petition and submitted to you by these instructions, and that such act, or acts, of negligence was the proximate cause of his injury, but you must also find," etc. If this were the entire record relating to this matter, the case would undoubtedly be one for reversal; for we have frequently held that it is the duty of the trial court to cull from the pleadings the exact matters to be submitted to the jury, and that it is bad practice, if not reversible error, to copy the pleadings, leaving it to the jury to discover just what points are to be considered by them. Swanson v. Allen, 108 Iowa 419, 79 N.W. 132; De Wulf v. Dix, 110 Iowa 553, 81 N.W. 779; Welch v. Insurance Co., 117 Iowa 394, 90 N.W. 828; Erb v. Insurance Co., 112 Iowa 357, 83 N.W. 1053, and cases cited. Moreover, it is the duty of the court to confine the jury to a consideration of the exact grounds of negligence charged and relied upon, rather than to permit them to find negligence of some sort, whether charged and relied upon or not. Manuel v. Railroad, 56 Iowa 655, 10 N.W. 237; Gorman v. Railroad, 78 Iowa 509; Edwards v. City, 138 Iowa 421; Ramsey v. Railroad Co., 135 Iowa 329. Of course, where the pleadings contain a clear statement of the issues, so that when copied they intelligently present the very matters to be tried, there is no error in copying them in stating the issues, although as a general rule it is better for the court to state the exact matters to be tried in its own language, omitting all extraneous or collateral matters, and especially taking from the case all issues which have been withdrawn. Crawford v. Nolan, 72 Iowa 673, 34 N.W. 754; Welch v. Insurance Co., supra; German Ins. Co. v. Railroad, 128 Iowa 386; Graybill v. Railroad, 112 Iowa 738; Dean v. Carpenter, 134 Iowa 275. Where the pleadings are copied for a statement of the issues, no prejudice will be presumed, but the court will look to the statement so made; and, if it appears that the issues are so stated as to clearly present the matters involved, and there is no reason to believe that the jury may have been misled thereby, no reversal will be ordered.

Going to the petition in this case, we find that the specifications of negligence are clearly stated, and that there is no reason to believe that the jury was in any manner misled, unless it be that they were not confined to the express specifications of negligence upon which plaintiff relied. In determining this latter question the instructions should be considered as a whole; and, if it appears therefrom that the exact grounds of negligence relied upon by plaintiff were clearly stated, and their inquiries were confined thereto, and not to some other or imaginary grounds, no harm resulted. Hawkins v. Young, 137 Iowa 281, 114 N.W. 1041; Beans v. Denny, 141 Iowa 52, 117 N.W. 1091; Kenny v. Ins. Co., 136 Iowa 140, 113 N.W. 566.

It will be observed that in the eighth instruction quoted the court does refer to the acts of negligence claimed by plaintiff and not to negligence generally, and it also gave the following "You are instructed that the defendant railway had the right to run its trains over the road any hour of the day, and the fact that the train in question was an extra, or not running on scheduled time, could not constitute negligence, and that plaintiff was bound to apprehend that a train might be passing over the track in question in any direction at any time, and reasonable and ordinary care required that he should, in passing over the track in a hand car conduct himself with reference to the peril incident...