Coates v. The Burlington, Cedar Rapids & Northern R'Y Co

• Decision Date: 13 December 1883
• Parties: COATES, ADM'X, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN R'Y CO
• Court: Iowa Supreme Court

17 N.W. 760

62 Iowa 486

COATES, ADM'X, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN R'Y CO

Supreme Court of Iowa, Des Moines

December 13, 1883

Appeal from Linn Circuit Court.

THE plaintiff is the widow of J. Q. Coates, deceased, and the administratrix of his estate, and she seeks to recover damages for injuries resulting in the death of the deceased from being caught in a frog and run over by one of defendant's trains, while engaged in coupling cars at Vinton, in this state.

There was a trial by jury, which resulted in a verdict and judgment for plaintiff for $ 5,000. Defendant appeals.

REVERSED.

J. & S K. Tracy, for appellant.

Mills & Keeler, for appellee.

OPINION

ROTHROCK, J.

I.

The deceased was about twenty-five years of age, and had three or four years' experience on railroads as a brakeman and switchman. He had been in the employment of defendant as a brakeman on freight trains for about two months previous to his death. At the time of the accident he was assisting in making up a freight train at Vinton. In performing this service, he was on top of the cars, and was directed to cut off two cars from the train. He descended from the cars and signaled the engineer to back up. The signal was obeyed, and the train was backed very slowly. Immediately upon giving the signal, Coates stepped between the cars to pull the pin. He made one or two steps along with the moving train, when his foot was caught and fastened in the angle of a frog in the track, and he was run over, receiving injuries from which he died in a few hours.

It is not and cannot be claimed that any employe of the defendant was negligent in directing deceased to uncouple the cars, as to the time and manner of directions given to him, nor that there was any negligence upon the part of the engineer. The evidence was undisputed that the train was backed very slowly, and that deceased took but a step or two after he went between the cars, when he was caught in the angle of the frog. The train was stopped so suddenly that only one pair of trucks passed over him.

About fifteen days before the injury, the defendant had put in a temporary spur track east of the switching yard at Vinton, for the purpose of moving earth to fill in a short piece of track. This spur track was not used for regular trains or cars, but simply for short dump cars hauled by horses. It was connected with the main track by the frog in which deceased caught his foot and was injured.

It is averred in the petition that the "defendant negligently constructed the same, (the spur track,) and negligently omitted to put blocks in the frogs at the intersection of the rails of said main and side track, or provide other safeguards between said rails, in the frog, or crotch, or intersection, at or near said switch, and whereby the employes of defendant using said track were wrongfully exposed to great danger and hazard."

The defendant in its answer denied the averment of negligence, and averred that "decedent was guilty of contributory negligence and want of proper care and caution at the time, in so carelessly walking upon said track as to get his foot fastened in the frog therein; that deceased knew of the existence of said frog, its location and the manner of its construction, and made no objection thereto, and was promised no change therein; that he was an experienced brakeman, and had often worked about this frog and track, and by the exercise of reasonable care and caution could well have known of its location and construction, and the dangers thereof, if any such dangers existed in fact, and yet made no complaint, and no promise of change was made therein, and wherefore defendant asks judgment for costs."

The plaintiff introduced a witness who was a brakeman, and he was examined as follows:

"Ques. Now, in the practice of uncoupling cars, what danger is there, if any, from frogs? What danger is there to brakemen in moving along the track? What danger is there from frogs in moving along the track uncoupling?" (Objected to as incompetent.)

Ans. "They are very dangerous if you get your foot into them."

Another witness was asked this question:

Q. "Provided two cars were together, and a person between the cars in motion, uncoupling, could he uncouple the cars, and at the same time see whether or not there was a frog upon the track at that place?"

A. "He could not when the train was in motion."

Q. "If a person were between two box freight cars moving while he was uncoupling the cars, could he tell whether a particular frog along the track was blocked or not blocked?"

A. "Well, that would depend upon circumstances altogether, the speed the train was going, and how much time he had to look around."

Q. "Well, in the act of uncoupling cars?"

A. "Well, no, sir. If a train was in motion, and a man was not looking for that frog, he couldn't see it if he went in to uncouple cars."

The questions above set out were objected to as incompetent, and in regard to those asked of the last witness the ground of incompetency was that they called for an opinion of the witness. The objections were overruled, and the defendant objected, and assigns the rulings as error.

There is some doubt in our minds as to whether the objection to the first above question was sufficient, in that it did not state that the question called for an opinion. The objections to the questions propounded to the other witness were sufficiently explicit, and in our opinion they should have been sustained. They call for an opinion of the witness as to whether or not, when the train was in motion, a person could go between the cars and uncouple them, and at the same time see whether a frog in the track was blocked. This is not a fact. It is an opinion of the witness based upon a complication of circumstances. It involves the questions as to the distance between the cars, the movement of the train and the attention of the party making the coupling to the act in which he was engaged. It will be observed that it is not a mere inquiry whether a particular object can be seen from a given position. The answers to the question impliedly concede that it is not physically impossible to stand or walk between two box cars coupled together, and at the same time see a frog in the track; but whether seen or not would depend on circumstances altogether--"the speed the train was going, and how much time he had to look around." These circumstances were proper facts to present to the jury, but to group them together and allow a witness to give his opinion or conclusion upon them was, in our opinion, clearly erroneous. It was a question for the jury to determine from all the facts whether the deceased, in the exercise of proper diligence, could or should have seen the frog and avoided the injury. Hamilton v. R. R. Co., 36 Iowa 31; ...