Cronk v. Wabash R. Co.

• Decision Date: 14 March 1904
• Citation: 98 N.W. 884,123 Iowa 349
• Parties: CHARLES H. CRONK, v. THE WABASH RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

98 N.W. 884

123 Iowa 349

CHARLES H. CRONK, v. THE WABASH RAILROAD COMPANY, Appellant

Supreme Court of Iowa, Des Moines

March 14, 1904

Appeal from Wapello District Court.--HON. M. A. ROBERTS, Judge.

On the 7th day of April, 1901, the plaintiff was a passenger in the caboose of defendant's freight train from Bloom field to Belknap. On the way several cars, including the caboose, left the track, and, according to the petition, the plaintiff was injured. He recovered judgment for damages, from which the defendant appeals.

Affirmed.

Geo. S Grover, S. S. Carruthers and McNett & Tisdale for appellant.

Jaques & Jaques and Taylor & Scarborough for appellee.

OPINION

LADD, J.

One of the questions raised in the course of the trial was whether plaintiff was afflicted with diabetes, and, if so, whether the disease had been occasioned by the shock and injury received at the time of the accident. Dr. Young testified on direct examination that: "As medical science now stands and among medical men, this disease of diabetes, in its origin, is not well known. The cases are rather obscure. * * * I would expect to look for some external injury to that part of the anatomy [base of brain]. * * * I do not think that any cases that have come under my observation or reading where it is so attributive, unless evidence of external injury could be found." Upon cross-examination he was asked, "Don't you find in your authorities that railroad accident or shock is one of the determined causes, and is treated as one of the producing causes of diabetes?" The objection as incompetent and secondary evidence was overruled, and he answered in the affirmative. This question was then propounded: "Then from that answer we are to understand that diabetes may come from a shock or injury--a traumatism--and it is so treated in the books?" The same objection was overruled, and he answered, "Yes, sir." Appellant insisted that these questions called for the contents of medical works, which were held inadmissible in Bixby v. Omaha Ry. Co., 105 Iowa 293, 75 N.W. 182. But the witness had referred to what he had learned from the books and from reading, in his direct evidence, and the questions were strictly in cross-examination upon these subjects.

It is suggested, however, that, if the evidence on the direct was improper, the plaintiff ought not to have been permitted to cross-examine thereon. A party who avails himself of the improper evidence is not in a situation to complain if his adversary is permitted to go into the same subject-matter on cross-examination. The inquiry was theoretical, and therefore not determinative of the issue to be submitted to the jury, as contended by appellant.

II. Dr. Kemble was allowed to testify to the rate of speed the train was moving at the time of the derailment. The defendant insists that her competency to express an opinion had not been shown. She had testified that she was "acquainted with the speed of trains, having had some experience and observation in that line." She had ridden frequently, and had "timed the train between stations with her watch, and otherwise, to determine its rate of speed." She had been noticing the motion of the train, and observing from the window the rapidity with which the telegraph and fence posts "whipped by." We think this showed her competency sufficiently to enable her to express an opinion, and the court rightly received her evidence. Pence v. Ry., 79 Iowa 389. If the rule in Grand Rapids & Ind. R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321), were to be followed, the ruling of the court was correct, for the witness appears to have had "such extended experience and observation as to qualify" her for forming an opinion more or less reliable.

III. One Bryant, the roadmaster of the defendant, after showing his familiarity with the road, and saying that "the same rails are in there to-day that were there at the time of the wreck," was asked, "What, if any, change or additional ties did you see in the track now from what they were after the track was repaired?" Objection as immaterial and irrelevant was sustained. All of the evidence of the witness that the same rails were still in the track was then stricken out. The ruling was correct. It was immaterial what the condition of the track was at the time of the trial, thirteen months after the accident. He had already testified to its condition immediately after the accident. It is said, however, that, having been received without objection, the court erred in excluding it. Leipird v. Stotler, 97 Iowa 169, 66 N.W. 150; State v. Marshall, 105 Iowa 38, 74 N.W. 763, and other like decisions are relied on. While a litigant may not insist upon the exclusion of evidence which he allows to be introduced without objection, still it is within the discretion of the court to strike improper evidence upon motion of either party.

IV. Exception is taken to the striking of an answer given by one Clark, but any prejudice was obviated by a subsequent answer covering substantially the same matter. Whether a heavy car being drawn along, off the track, by the train, could disturb the alignment of the rails, was a matter of common knowledge, and not the subject of expert evidence. The rulings on the objections to questions propounded to Lucas and Rawlins and evidence offered were so manifestly correct as to require no discussion.

The court submitted the following special interrogatory to the jury: "Do you find that the ties at the place of the accident were old, rotten, and decayed, so that such condition caused or contributed to the accident and injury of plaintiff?" It is argued that this assumed that the plaintiff had been injured, whereas that was one of the important issues in the case. We do not regard the question as...