Eisentrager v. Great N. Ry. Co.
| Citation | 160 N.W. 311,178 Iowa 713 |
| Decision Date | 13 December 1916 |
| Docket Number | No. 29959.,29959. |
| Parties | EISENTRAGER v. GREAT NORTHERN RY. CO. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Lyon County; William Hutchinson, Judge.
Suit for personal injuries sustained. Through the town of Alvord the track of defendant runs north and south. Along its west rail lie two planks about 6 feet long and some 22 inches wide. Adjoining these planks and running west is a cement walk about 6 feet wide. During the evening of February 28, 1913, in freezing weather, some ice had formed upon this walk, and some 2 feet west of the west rail. The ice was some 2 feet wide, and at about that width lay across this walk. Plaintiff fell upon this ice at a point a little to the west of the planks, and sustained serious injuries. He contends that servants of the defendant created the ice by negligently causing water to be discharged by a locomotive and to flow upon the walk. From verdict directed against him, plaintiff appeals. Affirmed.S. D. Riniker, of Rock Rapids, for appellant.
J. L. Kennedy, of Sioux City, and E. C. Roach, of Rock Rapids, for appellee.
[1] I. Certain testimony was taken against the objection of the appellee. We have the question whether, though erroneously admitted, it still must be considered on the question of whether there was sufficient evidence to send the case to the jury.
A fair summing up of it is that both before and after the injury complained of locomotive engines of defendant cast water in some manner, and in some amount, near this walk; possibly, upon it. There is no testimony, at any rate none in terms, that this was done during freezing weather. Appellant contends this testimony establishes a custom, and that such custom is competent to go to the jury on whether the negligence charged was proved. The following citations are made in support: Kolsti's Case, 32 Minn. 133, 19 N. W. 655; Nadau's Case, 76 Wis. 120, 43 N. W. 1135, 20 Am. St. Rep. 29;Cass v. Railway, 14 Allen (Mass.) 448; Holly's Case, 8 Gray (Mass.) 133,69 Am. Dec. 233; Jochem's Case, 72 Wis. 202, 203, 39 N. W. 383, 1 L. R. A. 178; Earl's Case, 16 N. Y. Supp. 770;1Railway v. Cowser, 57 Tex. 293; Carter's Case, 160 Iowa, 78, 141 N. W. 26;Railway v. Newell, 75 Ind. 545;Harriman's Case, 45 Ohio St. 11, 12 N. E. 451, 41 Am. St. Rep. 507;Railway v. Carpenter, 56 Fed. 451, 5 C. C. A. 551;McGee's Case, 92 Mo. 208, 4 S. W. 740, 1 Am. St. Rep. 706, citing Wood, Master & Servant, § 401; Lawson, Custom, 41, 42; Railway v. Gray, 65 Tex. 32; Tibby's Case, 82 Mo. 292, 299; Maynard's Case, 100 Mass. 40;McKean's Case, 55 Iowa, 192, 7 N. W. 505;Auld v. Railway, 136 Ga. 266, 71 S. E. 426, 32 L. R. A. (N. S.) 518; Brassell's Case, 84 N. Y. 242; Wood's Case, 49 Mich. 370, 13 N. W. 779; Fuller's Case, 21 Conn. 576; Schultz's Case, 44 Wis. 638;Sutherland v. Railway, 74 Hun, 162, 26 N. Y. Supp. 237; Railway v. Stoelke, 104 Ill. 201;Railway v. Clark, 108 Ill. 113;Davis v. Corry, 153 Pa. 598, 26 Atl. 621;Eureka Insurance Co. v. Robinson, 56 Pa. 264; 1 Elliott, Ev., par. 109, resting on Shove's Case, 18 Pick. (Mass.) 558, 561; Vaugah's Case, 63 N. C. 11;Lynch v. Ashe, 8 N. C. 240. A large part of these hold, in effect, it may bear on negligence or contributory negligence that what is complained of was usual. Others, that one who establishes a usage must anticipate that others will act in reliance upon such usage. All have been carefully read, and it will serve no useful purpose to analyze them here. Suffice it to say none of them hold that negligent throwing of water by one engine at a stated time and upon a stated place may be proven by showing that other engines in some manner cast water at different times near and, by possibility, upon that place.
Then there is a dictum by way of argument in Wheelan v. Railway, 85 Iowa, 172, 52 N. W. 119, that if the evidence had not disclosed a car door in question had been loose and swinging several times prior to the accident, and once after it on the same trip, there would have been no claim that its hasp was the cause of the accident. Lastly, there is Railway v. Richardson, 91 U. S. 454, 471, 23 L. Ed. 356, in which language is used tending to sustain the contention of appellant. In effect the case is a holding that where an engine crosses a bridge shortly before that bridge is fired, then, evidence that, in passing, other engines had scattered fire, has some probative weight on the ultimate issue to be determined. The case seems to stand alone. It concedes some cases oppose its rule, that such evidence is “of course indirect evidence, if it be evidence at all”; and finally it is pointed out that the testimony was probably rebuttal, and that a special rule prevails as to rebuttal. As will presently appear, it makes some pronouncements which oppose the effect of its language. It holds that where a fire occurs which causes the destruction of a building in a dry time, when there is a high wind, and when more than ordinary vigilance is demanded, it is incompetent to show that the usual practice of railroad companies in that section of the country was not to employ a switchman for bridges like the one destroyed by fire and causing the burning of the building, and that the usual practice of others in that section of the country sheds no light on the duty of defendant when running locomotives over long wooden bridges in near proximity to a frame building, when danger was more than commonly imminent. It is said in Brown's Case, 202 Pa. 297, 51 Atl. 962, 58 L. R. A. 321, that, unless it be shown to have been necessary, it will not avoid liability for injury caused by draining water from the house of defendant over the sidewalk through an uncovered drain, and thus forming a ridge of ice, and that in that borough it was customary thus to drain water. 3 Elliott, Ev. p. 1001, citing Aiken's Case, 184 Mass. 269, 68 N. E. 238, and Kingston's Case, 112 Mich. 40, 70 N. W. 315, 74 N. W. 230, 40 L. R. A. 131, states that evidence that either the plaintiff or defendant was negligent at other times, or as to his habits concerning carefulness, is generally incompetent, and in section 2506, that the better rule is that evidence of previous accidents at the same place is, ordinarily at least, not admissible to prove negligence at the time in question; that while evidence of prior accidents may sometimes be admissible in some cases on the question of notice, it raises too many distinct and collateral issues; that evidence there were or were not prior accidents is of very little, if any, probative value, unless there be put in all the facts and conditions existing at such other times, and that this is usually unnecessary because the facts in regard to the conditions and circumstances at the time in question are susceptible of direct proof. In Railway v. Clayberg, 107 Ill. 644, evidence was excluded to the effect that deceased charged with contributory negligence was in the habit of jumping on trains. In Hudson v. Railway, 59 Iowa, 581, 13 N. W. 735, 44 Am. Rep. 692, we said of evidence to the effect that a day or two after the accident the employés of defendant changed the crossing in such manner as to avoid the defect complained of, could have no other purpose than to establish an admission on the part of defendant of its own negligence at the time of the accident, and that this evidence was not admissible for any purpose because it was one made by employés after the transaction which constituted the principal one. In Mathews v. City, 80 Iowa, 466, 45 N. W. 894, 20 Am. St. Rep. 436, we felt constrained, by reason of the Hudson Case, to exclude evidence to the effect that other parties had fallen into the same opening into which plaintiff had, and that defendant had been informed of this. In Croddy v. Railway, 91 Iowa, 605, 60 N. W. 214, on the authority of the Hudson Case, we sustain the exclusion of testimony that stock had frequently been killed at a certain crossing where the injury in that suit was claimed to have happened. In Langhammer's Case, 99 Iowa, 297, 298, 68 N. W. 688, 689, plaintiff was injured by slipping on a step, and we held it was not permissible to show that others had slipped on the same step prior to the accident in suit, and said:
“Whatever may be the rule in other jurisdictions, it is well settled in this state, that in such a case evidence of similar disconnected acts is not admissible.”
In Kirchoff's Case, 148 Iowa, 513, 123 N. W. 210, we ruled it was inadmissible to show that during 18 years no one had before been hurt by the planer involved in that suit. And see Railway v. Evansich, 61 Tex. 6, and Black, Law & Pr. Accident Cases, § 193.
(a) All said would be relevant if appellant had a stronger showing. But he does not have as much as evidence that the thing charged here was customarily done before, and at the same place. The effect of evidence of a general custom to have defendant's locomotive discharge water so that it would flow upon this walk is not here for decision. The most this jury had was a chance to guess at what point and in what manner other engines cast water. It follows that the objections made--incompetent, irrelevant, and immaterial--should have been sustained. This conclusion turns into academic inquiries certain contentions--even if these were well made.
[2] It may be conceded that the directing of the verdict for defendant operated to change the ruling excluding this testimony. The trial court had power to change its trial rulings. Standish's Case, 21 Iowa, 369; Jenkins' Case, 36 Iowa, 526;McClain's Case, 98 Iowa, 145, 67 N. W. 102;Van Werden's Case, 99 Iowa, 623, 68 N. W. 892. In Littleton's Case, 95 Iowa, 320, 63 N. W. 666, a change of opinion was effected by directing a verdict. That all said decisions involve a change of front on rulings on demurrer is purely adventitious. They attach no weight to the fact that a particular ruling was changed, and the principle they establish is that no matter what the first...
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