Gibson v. Burlington, C. R. & N. Ry. Co.
| Citation | 107 Iowa 596,78 N.W. 190 |
| Court | United States State Supreme Court of Iowa |
| Decision Date | 08 February 1899 |
| Parties | GIBSON v. BURLINGTON, C. R. & N. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from superior court of Cedar Rapids; T. M. Giberson, Judge.
Action at law to recover damages alleged to have been caused by negligence on the part of the defendant, which resulted in the death of the plaintiff's intestate. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals. Reversed.Clemens & Steel and Preston, Wheeler & Moffit, for appellant.
J. C. Leonard and S. K. Tracy, for appellee.
On the 5th day of January, 1896, and for years before that time, the plaintiff's intestate, William H. Gibson, was in the service of the defendant, as locomotive engineer. Before 1 o'clock in the morning of the day specified, he arrived at Cedar Rapids, in charge of his engine, No. 69, on his run from the south, and commenced to inspect the engine, preparatory to giving it into the care of a hostler, who was to take it to the roundhouse. It was a part of the duty of the decedent to make the inspection, and, until it was completed, the engine remained in his care and subject to his control. A part of the inspection consisted in examining certain eccentrics, and, to do so, he was obliged to touch them. To accomplish that, he passed an arm between spokes of a drive wheel of the engine; and while in that position, endeavoring to touch an eccentric, the locomotive was suddenly moved forward, and he was caught between a spoke and a driving rod, and instantly killed. The movement of the engine was caused by coupling cars to the rear end of the train. The defendant is alleged to have been negligent as follows: “(1) In causing engine No. 69 to start forward while plaintiff's intestate was in such exposed position, without first giving him notice; (2) in causing engine No. 69 to start forward at the time and in the manner that it did; (3) in running a switch engine against the cars next behind said engine No. 69, and thereby moving said engine and tender forward; (4) in running said switch engine with great and unnecessary violence against the cars intervening between it and engine No. 69, thereby causing engine No. 69 to start forward, and catch and kill said intestate; (5) in not having said switch engine in proper repair and properly equipped, and under control and running at the proper rate of speed at the time it struck and pushed the cars between it and engine No. 69 against the tender of engine No. 69, thereby forcing said tender and engine forward; (6) in requiring plaintiff's intestate to inspect his engine at the time, in the manner, at the place, and under the circumstances hereinbefore detailed.” The defendant denies all negligence on its part, and avers contributory negligence on the part of the decedent.
1. A witness named Angle testified that he saw the accident, and went to the decedent as soon as possible, and found him dead, but that he did not remain to see the body released, for the reason that he was taken by a train dispatcher or railroad officer to the ticket office. He was then asked why he went with the official, if he knew the official, whether he had any conversation with him, how much time elapsed after he saw the decedent fast in the engine before he arrived at the ticket office, and whether anything was said to him by the railroad employés then in charge before he went to the office, and while Gibson was being taken out; but objections to the questions were sustained, and of those rulings the plaintiff complains. The witness had said that the man who took him into the office had asked him if he saw the accident, and, upon receiving an affirmative answer, said, “We want you back here.” There was nothing in the answer given nor in the questions to which objections were sustained which indicated that if anything was said to the witness while the body of Gibson was being removed from the engine, which was not shown, it was said by any one who knew how the accident occurred, or who was in any manner responsible for it, nor that what was said tended in any manner to explain the accident. The record fails to show anything from which it might be inferred that the testimony rejected was either relevant or competent, and it follows that the rulings of the court which rejected it were correct.
2. A witness named Swem was called by the plaintiff, and testified at some length. At a later day of the trial, he was recalled by the plaintiff, and a statement was made to him, as follows: This was objected to “as indefinite”; the objection was sustained; and of that ruling the plaintiff complains. We think it was correct. If the proposed explanation was material or relevant, the fact should have been indicated, at least by pointing out the testimony to which the question referred.
3. A map made by the city engineer November, 1895, was received in evidence, notwithstanding the objection of the plaintiff that it was incompetent and immaterial. It is said in argument that it was not shown to be correct, nor to represent the railway tracks as they were at the time of the accident. The map is not set out, and its contents can only be inferred from the statements of the counsel. There was no controversy, however, in regard to any fact which the map could have shown; and its use in evidence, even if immaterial, could not have been prejudicial. Certainly, we cannot presume that it was, since it is not set out in the record.
4. There was a dispute respecting the precaution which should have been taken to avoid the accident, the defendant contending that the engine should have been uncoupled and separated from the train while the inspection was being made. A witness named Bull testified for the defendant that he worked as fireman with the decedent from June to September, 1895; that it was customary for the hostler to go onto the engine at the depot, where the engine would be uncoupled; and that the decedent then ran the engine for inspection to C avenue. The witness was then asked this question: “Tell the jury whether or not it was customary on that train to move the engine forward after it got in, to look her over, prior to the accident?” An objection by the plaintiff was overruled, and the witness answered, “Yes, sir; it was.” The plaintiff complains of that ruling, but we think it was correct. The testimony of the witness had shown during what time he had personal knowledge of the custom of Gibson in regard to the inspection, and, if the answer could have been construed to apply to a time of which the witness did not have knowledge, the fact could have been shown by cross-examination.
5. A witness named Cameron testified that he was an engineer, and made one run on Gibson's train before his death, and was permitted to testify, over the objection of the plaintiff, that on that occasion he took the engine “down between A and B avenues,” to look it over. We are of the opinion that the testimony was proper as tending to show, with other evidence, where the engine of the decedent was ordinarily inspected. Cameron and another engineer testified that it was dangerous for a person to thrust an arm between the spokes of a locomotive wheel when it was at rest, because of the switching which was done when Gibson's train came in. It is objected that...
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