Funston v. Chicago, Rock Island & Pacific R'Y Co.

• Citation: 16 N.W. 518,61 Iowa 452
• Parties: FUNSTON v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO
• Decision Date: 19 September 1883
• Court: United States State Supreme Court of Iowa

16 N.W. 518

61 Iowa 452

FUNSTON v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO

Supreme Court of Iowa, Council Bluffs

September 19, 1883

Appeal from Jefferson Circuit Court.

THERE ARE TWO COUNTS IN THE PETITION. The first states that the plaintiff was "in the act of crossing defendant's railroad track with team and wagon, on the highway, and without negligence on his part, and by the negligence of the defendant in not giving the proper signals when approaching said highway with locomotive and cars, your petitioner was injured by said locomotive running into his wagon, upsetting and breaking the same, and the harness upon his horses injury and damage to his horses, breaking the thigh, and otherwise injuring and mutilating the person of your petitioner."

The second count sets forth the same cause of action, except that the negligence of the defendant is stated to be "the unsafe condition and negligent manner of the construction of the defendant's road bed and railroad track, and the negligent condition in which said crossing and the defendant's right of way adjacent thereto is and was kept and permitted by the company to remain in," whereby "both sight and sound of approaching trains" was "cut off and obstructed from passers by on the highway." The defendant pleaded a general denial and that the injury was caused by the negligence of the plaintiff. Trial by jury, verdict for the plaintiff for eight thousand dollars and judgment on the verdict. The defendant appeals.

AFFIRMED.

M. A Low, for appellant.

D. P. Stubbs, for appellee.

OPINION

SEEVERS, J.

There was evidence tending to show that when the railroad was constructed there was a cut made and earth thrown up at and near the place where the highway was crossed, and, because of the matters just stated, the view of an approaching train on the railroad was to some extent, at least, obstructed. The plaintiff was passing along the highway seated in a wagon and driving two horses. He was approaching the crossing. In front of him was a wagon and team driven by one Noble. There was a descent to and an ascent from the track. Noble, when near the track, stopped his team and waited until a passenger train passed, when he immediately crossed. The evidence tended to show that the plaintiff saw the passenger train and Noble, and that he checked the speed of his horses, or entirely stopped, about the time Noble did. The plaintiff moved forward when Noble started his team, and when the plaintiff's horses stepped on the track he claims for the first time to have discovered an irregular or wild train which was following the one which had just passed, and it was by such that he was struck and injured. The evidence was conflicting as to whether the train causing the accident gave any signal when approaching the crossing. There was evidence tending to show that the plaintiff was about two rods behind Noble when the latter started to cross the track. The evidence does not with entire certainty show how far the extra was behind the regular train, but it did not exceed a mile, or from two to four minutes in time. The jury found, in answer to a special interrogatory, that the plaintiff did not look for a following train when his team was about to go down the decline to the track, as we understand, but that he "did look as soon as he could see;" that is, if he had looked sooner than he did he could not have seen the approaching train because of the obstruction. This we understand to be the effect of the finding. Many errors have been assigned and discussed by counsel, which we will endeavor to consider and determine with as much brevity as their importance seems to warrant.

I. Two witnesses for the plaintiff were asked, in substance, "whether a two-horse wagon could be turned down there near the crossing." That is, we suppose, turned in the highway near the railroad track. The question was objected to as being immaterial and incompetent. The objection was overruled. It is now said that the evidence sought to be elicited was in the nature of expert evidence, and therefore inadmissible. It is doubtful whether the objection now urged was made below, but, conceding that it was, we think it can be well said that it is difficult, if not impossible, to lay down any rule as to what is or is not expert evidence, which is applicable to all cases; but we think that what is the width of a road or opening is a fact, although necessarily but an opinion, depending on accurate measurement. This being so, we think the question whether a team can be turned in a road, or a certain thing pass through a door or other opening, is also a fact as to which a witness may testify, and that such evidence cannot be classed as expert.

II. Evidence was introduced by the plaintiff tending to show that the highway was not as wide, or in as good and passable condition, at the time of the accident as it was prior to the construction of the railroad. This evidence was objected to, but the objection was overruled. It was urged that this evidence was inadmissible because there was no such issue, and for other reasons. We think the evidence was admissible, at least for the "purpose of aiding in the measurement of the vigilance to which the defendant and its employes are to be held in the use of signals and the operation of trains in their approach to and passage over the crossing." And the court so held, in the language just quoted. While the defendant had the right to lower the highway for the purpose of crossing and the proper construction of its road, yet it was its duty under the statute to put the highway in as good condition as it was before the construction of the railroad. If it failed to perform this duty, and the danger to persons crossing the railroad on the highway was thereby increased, the defendant in approaching such crossing with its trains should exercise more diligence than it otherwise might be required to do. The defendant and its employes knew, or were bound to know, the condition of this crossing, and whether by reason of obstructions persons passing along the highway in the immediate vicinity thereof could readily or otherwise see approaching trains. It might not be negligence to omit giving signals when the train was approaching some crossings, and others it would be. Persons in the management of trains must act with a view to the circumstances by which they are surrounded, and whether they did so in this instance it was for the jury to say.

III. There was evidence tending to show that immediately after the accident the plaintiff said that the employes of the defendant were not to blame. At the request of the plaintiff, the court gave to the jury an instruction literally the same as the instruction on the same subject given in Cooper v. The Central R. R. Co., 44 Iowa 134.

It is urged that the two cases are not alike, but no difference whatever is pointed out, and we have been unable to discover any which would constitute reversible error in one and not in the other. A similar instruction was given in Perigo v. The C., R. I. & P. R. R. Co., 55 Iowa 326, 7 N.W. 627, which was to an extent disapproved, for reasons stated, and it was there said: "We are not prepared to say it contains reversible error;" but, in view of another trial, it was suggested that the instruction should be more carefully drawn, and somewhat limited in its scope and effect. The Cooper case was not overruled. The case of Marquette R. R. Co. v. Kirkwood, 45 Mich. 51, 7 N.W. 209, is not in point. In that case the court, in substance, directed the jury to scrutinize with care the evidence of railroad employes, because of their connection with and dependence on the company. There were no circumstances other than their employment which tended to cast suspicion on their evidence. In the case at bar, the instruction objected to is based on the thought that the employes testified truly, but the jury were directed to consider carefully as to the effect to be given to what the plaintiff said, because of his situation, pain and suffering at the time. Following the Cooper case, we cannot say there was reversible error committed in giving the instruction under consideration.

IV. The court instructed the jury, in substance, that evidence as to the condition of the highway before and after the railroad was constructed, was admitted only for the purpose of aiding them to determine the proper degree of diligence which should be exercised by the employes of the defendant when trains were approaching the crossing. This instruction is said to be erroneous: First, because there was no such issue. But it is stated in the petition that because of the failure of the defendant to give any signals the accident occurred. Now, whether such failure constituted negligence depended upon the condition of the crossing as explained in other instructions. Second it is said, no rule was given the jury by which they were to determine the degree of diligence to be used, and that it was unfair and misleading in not directing the jury to the corresponding obligations imposed on the plaintiff because of the highway and obstructions. This criticism would have much more weight possibly, if no other instructions had been given the jury. It is not usual, and ordinarily not possible, to state...