Dedman v. Oregon Short Line Railroad Co.

• Decision Date: 21 December 1936
• Docket Number: 6304
• Citation: 63 P.2d 667,57 Idaho 160
• Parties: R. A. DEDMAN, Appellant, v. OREGON SHORT LINE RAILROAD COMPANY and FRED MCATEE, Respondents
• Court: Idaho Supreme Court

63 P.2d 667

57 Idaho 160

R. A. DEDMAN, Appellant, v. OREGON SHORT LINE RAILROAD COMPANY and FRED MCATEE, Respondents

No. 6304

Supreme Court of Idaho

December 21, 1936

RAILROAD CROSSING ACCIDENT-EVIDENCE-EXPERT TESTIMONY-OPINIONS-APPEAL AND ERROR-HARMLESS ERROR.

1. In actions for injuries to pedestrians struck by train at crossing, permitting engineer of locomotive involved in accident to testify whether he knew of anything else he could have done to stop locomotive quicker held not error.

2. In actions for injuries to pedestrians struck by train at crossing and dragged or pushed some distance, permitting experienced engineer, called by defendants, to testify as to what he would be able to do to stop the train and how long it would take under circumstances specified, held error.

3. In actions for injuries to pedestrians struck by train at crossing and dragged or pushed some distance, permitting experienced engineer, called by defendants, to testify as to what he would be able to do to stop train and how long it would take under circumstances specified, though error, held not prejudicial to plaintiffs.

4. What was necessary to be done to stop train quickly when it collided with pedestrians at crossing was matter for someone who was skilled as an engineer or in operation of engines to state.

5. In action for injuries to pedestrians struck by train at crossing, instruction that if they needlessly stood beyond limits of traveled road as maintained by public authorities and in doing so negligently subjected themselves to danger causing or contributing to their falling under train, verdict should be against pedestrians unless engineer was negligent under last clear chance doctrine, held not objectionable as instructing that plaintiff husband was responsible for or bound by contributory negligence of plaintiff wife.

6. Objection that court erroneously instructed verbally that any verdict for plaintiffs should be given against both defendants in personal injury action could not be considered on appeal, where record did not disclose that action of court was objected or excepted to.

7. Objection that trial court erroneously instructed jury verbally that any verdict for plaintiffs should be against both defendants in personal injury action held not sustainable, where record did not show that trial court's oral statement purported to be an instruction, but was mere repetition from memory of substance of written instruction given.

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. Isaac McDougall, Judge.

Action for personal injuries. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

Errol H. Hillman and Anderson, Bowen & Anderson, for Appellant.

It is not competent, and evidence should not be received that the operator of a train, or other vehicle, could not have stopped sooner than he did, or that he did everything he could to prevent the accident. (Fogel v. San Francisco & S. M. Ry Co., 5 Cal. Unrep. 194, 42 P. 565; Springfield Consol. Ry. Co. v. Welsch, 155 Ill. 511, 40 N.E. 1034; Springfield Consol. R. Co. v. Puntenney, 200 Ill. 9, 65 N.E 442.)

It is highly improper and prejudicial to permit witnesses to testify as to how long it takes to perform a supposed act. (22 C. J. 634, sec. 728; Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; 3 Jones Commentaries on Evidence, pp. 2417, 2419, secs. 1321, 1322.)

Geo. H. Smith and H. B. Thompson, for Respondents.

It is competent to permit a locomotive engineer to testify that there was nothing more that he knew of that he could have done to make a quicker stop of his engine. (Davis v. Boston & M. R. Co., 75 N.H. 467, 76 A. 170; Champlin v. Pawcatuck Valley St. R. Co., 33 R. I. 572, 82 A. 481; Merrihew v. Goodspeed, 102 Vt. 206, 147 A. 346, 66 A. L. R. 1109; Smith v. Galveston-Houston Elec. R. Co., (Tex. Com. App.) 265 S.W. 267, 277 S.W. 103.)

Qualification of witness to testify as expert rests largely within discretion of trial court, whose rulings will not be reversed unless there has been an abuse of discretion. (Lowe v. Skaggs Safeway Stores., Inc., 49 Idaho 48, 286 P. 616.)

Permitting an expert to give an ultimate expression of opinion as to the result that can be obtained under given circumstances is not a usurpation or invasion of the province of the jury. (Hayhurst v. Boyd Hospital, 43 Idaho 661, 254 P. 528.)

GIVENS, C. J. Budge, J., concurs, AILSHIE, J., Specially Concurring. MORGAN, J., Holden, J., Dissenting.

OPINION

GIVENS, C. J.

Appellant and his wife sued respondents for damages for injuries received from falling under and being dragged or pushed by one of the trains of respondent railroad company at a highway crossing at Drummond. Mr. and Mrs. Dedman were joint plaintiffs in the action for her injuries. Dedman sued alone for his injuries. The cases were consolidated for trial and the jury returned verdicts against appellant and his wife and for respondents. The husband's case alone was appealed.

Two grounds of negligence were alleged in the complaint: First, that the respondent railroad company had negligently piled the snow at the crossing on the highway to an excessive depth, and that when the train in question came by, it caused the snow to give way and appellants to slip and slide under the train. The other ground was that respondent engineer was negligent in not more quickly stopping the train.

Appellant's first assignment of error is the trial court's action in overruling the following objection:

"Mr. ANDERSON: We object as incompetent, irrelevant and immaterial, calling for a conclusion of the witness, and invading the province of the jury." to this question:

"Q. Was there anything that you know of you could have done with the engine, with the appliances at hand and under the circumstances, which you did not do, to stop it quicker?" relying on these authorities to support his contention that the question called for an opinion on the ultimate question the jury was called upon to decide. (Springfield Consol. Ry. Co. v. Welsh, 155 Ill. 511, 40 N.E. 1034; Bruggeman v. Illinois Central Ry. Co., 147 Iowa 187, 123 N.W. 1007, Ann. Cas. 1912B, 876; Springfield Consol. Ry. Co. v. Puntenney, 200 Ill. 9, 65 N.E. 442; Nosler v. Chicago, B. & Q. Ry. Co., 73 Iowa 268, 34 N.W. 850.) Other cases were cited but therein the questions asked were so different as not to be in point. For instance in Fogel v. San Francisco & S. M. Ry. Co., 110 Cal. xvii, 5 Cal. Unrep. 194, 42 P. 565, and Jeffries v. Seaboard A. L. R. Co., 129 N.C. 236, 39 S.E. 836, the question was "anything done to save the child"; Louisville & N. R. Co. v. Landers, 135 Ala. 504, 33 So. 482, involved delay injuring cattle. While the limited authorities above mentioned do support appellant with regard to this particular question, the better reasoned rule supported by authority is to the effect that the engineer of the locomotive involved in the alleged accident, that is the actor, the individual charged with negligence may testify as to whether he knew of anything else he could have done to stop quicker, such testimony being admissible on the ground that it calls for a statement of fact from the operator thereof with regard to the use of an instrumentality calling for skilled knowledge and is not a matter of general information, and though the ruling is in appellant's favor in Ingwersen v. Carr & Brannon, 180 Iowa 988, 164 N.W. 217 at 226, the reasoning supports the admissibility of such evidence. (See, also, Davis v. Boston & M. R. R., 75 N.H. 467, 76 A. 170; Paquette v. Connecticut Valley Lumber Co., 79 N.H. 288, 109 A. 836; Morrison v. Boston & M. R. R., 86 N.H. 176, 164 A. 553 at 556; Champlin v. Pawcatuck Valley St. Ry. Co., 33 R.I. 572, 82 A. 481; Merrihew v. Goodspeed, 102 Vt. 206, 147 A. 346, 66 A. L. R. 1109; Garvey v. Ladd, (Mo. App.) 266 S.W. 727 at 732.)

Appellant calls attention to the rule at 1117 et seq., 66 A. L. R., when, however, those cases are carefully examined it will be found that where the question is confined to the stopping of the car or engine by the operator thereof, most of the authorities tend to support the admissibility of this evidence.

Appellant next assigns as error the action of the trial court in overruling the following objection to the testimony of the witness Barnes, called as an experienced engineer by respondents:

"Q. What, according to your experience, would you be able to do if when you were in that position you were looking backward from the cab and saw a person and had occasion to stop the train, what would you do to the train, and how long would it take you?

"Mr. ANDERSON: We object to that as incompetent, irrelevant and immaterial; speculative, and calling for a conclusion of the witness, and it is invading the province of the jury."

To get a proper perspective of this question and the objection and answer it is necessary to review somewhat in detail previous testimony given by witnesses of both respondents and appellant. In appellant's case in chief he called as a witness one Walter F. Dillon who was questioned as to his qualifications as an engineer and an air-brake expert, and who testified with regard to stopping a train somewhat similar to the one involved herein and under like circumstances as follows:

"Q. And from your study of air brakes and cars and engines, and from your experience with air brakes, would you state that you can give a reasonably accurate estimate of the distances a train could be stopped in?

"A. I would have to ask a few questions as I went along.

"Q. Well, perhaps I don't make myself very clear. I will withdraw that question, and ask it this way: From your experience, Mr. Dillon, and your study, do you consider that you can...