Eisentrager v. Great Northern Railway Co.

• Decision Date: 13 December 1916
• Docket Number: 29959
• Parties: GEORGE EISENTRAGER, Appellant, v. GREAT NORTHERN RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

160 N.W. 311

178 Iowa 713

GEORGE EISENTRAGER, Appellant, v. GREAT NORTHERN RAILWAY COMPANY, Appellee

No. 29959

Supreme Court of Iowa, Des Moines

December 13, 1916

Appeal from Lyon District Court.--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, for appellant.

J. L. Kennedy and E. C. Roach, for appellee.

SALINGER, J. EVANS, C. J., LADD and GAYNOR, JJ., concur.

OPINION

SALINGER, J.

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 v. Minneapolis & St. L. R. Co., 32 Minn. 133, 19 N.W. 655; Nadau v. White Riv. Lbr. Co., 76 Wis. 120, 43 N.W. 1135; Cass v. Boston & L. R. Co., 96 Mass. 448, 14 Allen 448; Holly v. Boston Gas L Co., 74 Mass. 123, 8 Gray 123, at 133; Jochem v. Robinson, 72 Wis. 199, 202-3, 39 N.W. 383; Earl v. Crouch, 16 N.Y.S. 770; Houston & T. C. R. Co. v. Cowser, 57 Tex. 293; Carter v. Sioux City Serv. Co., 160 Iowa 78, 141 N.W. 26; Cleveland, C. C. & I. R. Co. v. Newell, 75 Ind. 542, at 545; Harriman v. Pittsburgh, C. & St. L. R. Co. (Ohio), 12 N.E. 451; Chicago, M. & St. P. R. Co. v. Carpenter (C. C. A.), 56 F. 451; McGee v. Missouri Pac. R. Co. (Mo.), 4 S.W. 739, at 740, citing Wood, Master & Servant, Sec. 401; Lawson, Custom, 41, 42; International & G. N. and Missouri Pac. R. Cos. v. Gray, 65 Tex. 32; Tibby v. Missouri Pac. R. Co., 82 Mo. 292, 299; Maynard v. Buck, 100 Mass. 40; McKean v. B. C. R. & N. R. Co., 55 Iowa 192, 7 N.W. 505; Auld v. Southern R. Co. (Ga.), 71 S.E. 426; Brassell v. New York Cent. & H. R. R. Co., 84 N.Y. 241; Wood v. Lake Shore & M. S. R. Co., 49 Mich. 370, 372, 13 N.W. 779; Fuller v. Naugatuck R. Co., 21 Conn. 557 at 576; Schultz v. Chicago & N.W. R. Co., 44 Wis. 638; Sutherland v. Troy & B. R. Co., 125 N.Y. 737, 74 Hun 16, 26 N.Y.S. 237; Pennsylvania Co. v. Stoelke, 104 Ill. 201; Chicago, R. I. & P. R. Co. v. Clark, 108 Ill. 113; Davis v. City of Corry (Pa.), 26 A. 621; Eureka Ins. Co. v. Robinson, 56 Pa. 256, at 264; 1 Elliott Ev., Sec. 109, resting on Shove v. Wiley, 35 Mass. 558, 18 Pick. 558, 561; Vaughan v. Raleigh & G. R. Co., 63 N.C. 11; Ashe v. De Rosset, 53 N.C. 240, 8 Jones 240. A large part of these hold, in effect, that 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. Chicago, M. & St. P. R. Co., 85 Iowa 167, 172, 52 N.W. 119, that, if the evidence had not disclosed that 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 Grand Trunk R. Co. 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 that 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 v. White (Pa.), 51 A. 962, 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, that in that borough it was customary thus to drain water. 3 Elliott on Evidence, page 1001, citing Aiken v. Holyoke St. R. Co. (Mass.), 68 N.E. 238, and Kingston v. Ft. Wayne & E. R. Co. (Mich.), 74 N.W. 230, 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 that 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 Peoria & Pekin Union R. Co. 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. C. & N.W. R. Co., 59 Iowa 581, 13 N.W. 735, we said that evidence to the effect that, a day or two after the accident, the employees 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 an admission made by employees, after the transaction which constituted the principal one. In Mathews v. City, 80 Iowa 459, at 466, 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. Chicago, R. I. & P. R. Co., 91 Iowa 598, at 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 v. City of Manchester, 99 Iowa 295, at 297, 298, 68 N.W. 688, plaintiff was injured by slipping on a step, and we held that 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 v. Hohnsbehn's Cry. Sup. Co., 148 Iowa 508, at 513, 123 N.W. 210, we ruled that it was inadmissible to show that, during 18 years, no one had before been hurt by the planer involved in that suit. And see Gulf, C. & S. F. R. Co. v. Evansich, 61 Tex. 3, at 6, and Black, Law & Pr. in Accident Cases, Sec. 193.

1-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 locomotives 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...