Gorman v. Minneapolis & St. L. Ry. Co.

• Decision Date: 16 October 1889
• Citation: 78 Iowa 509,43 N.W. 303
• Court: Iowa Supreme Court
• Parties: GORMAN v. MINNEAPOLIS & ST. L. RY. CO.

78 Iowa 509

43 N.W. 303

GORMAN

v.MINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Iowa.

Oct. 16, 1889.

Appeal from district court, Kossuth county; GEORGE H. CARR, Judge.

The petition, after showing plaintiff's appointment as administrator of Thomas Gorman, deceased, and that the defendant is operating a railway, charges that the deceased came to his death when in the employment of the defendant as a brakeman on one of its freight trains, while engaged in uncoupling, by being run over by the train, without fault or negligence upon his part contributing thereto, and because of the negligence of the defendant. The negligence charged against the defendant is as follows: First. That defendant was negligent in employing said Thomas Gorman as such brakeman, because he was only about twenty years old, and without any knowledge of the business, all of which was at the time known to the defendant. Second. That the conductor, whose orders said Thomas Gorman was bound to obey, on a dark, cold night, negligently ordered said Thomas Gorman to uncouple the engine from the train while the same was in motion, the giving of which order was negligence (1) because said Thomas Gorman was without any proper rules and regulations to govern him; (2) because he was without any proper instruction or information as to his duty, and the dangers of his employment; (3) because he was without any knowledge of the dangers to which he would be exposed in obeying said order; and (4) because said order was to uncouple the engine from the train while the same was in motion. Third. That defendant was negligent in not furnishing proper appliances and protection for such uncoupling. And, fourth, because the engine was negligently run at an unusual rate of speed. The defendant, answering, admitted its corporate capacity, and denied every other allegation, and alleged that the deceased was guilty of contributory negligence. The case was tried to a jury, and a verdict in favor of plaintiff for $5,630.63. Motion for a new trial overruled, to which defendant excepted. Judgment upon the verdict, and defendant appeals.

BECK, J., dissenting.

Albert E. Clarke and Danson Bros., for appellant.

Clarke & Cale, for appellee.

GIVEN, C. J.

1. We first notice the questions made in the record upon admitting and rejecting testimony. The witness Corcoran was asked: “Do you know, from your experience on this road and other roads, what the general custom is as to the duties of the brakeman in obeying the orders of his conductor?” The defendant objected, because the rules defining the duties of the brakeman were in print, which objection was overruled, and the witness permitted to answer. It did appear by previous inquiries that brakemen were furnished with time-cards, on which rules and directions were printed, but it did not appear whether any rule on this subject was embraced therein. There was no error in admitting this testimony, as it does not appear to have been secondary. Corcoran was rear brakeman on the train. He was permitted to testify, over defendant's objections, that Costelo, the conductor, in the absence of the deceased, told Corcoran “to tell Gorman to cut off the engine and stop the train for the crossing; and I did so. I did not hear anything said by Costelo to Gorman. When I made that remark, I did not tell him that Costelo had told me to tell him. I just simply said so myself. He knew I was rear brakeman.” Appellant contends that as this order was not given as coming from the conductor, Costelo, it was immaterial, and the deceased was not bound to obey it, or justified in attempting to obey it, as an order from his superior. While it is true Corcoran did not tell him where the order came from, yet it was admissible as showing the circumstances under which deceased acted. We think it was for the jury to say, under all the facts and circumstances, whether he might reasonably understand it to be an order from the conductor. There was no error in admitting that testimony, nor in overruling the defendant's motion to withdraw the same from the jury.

Johnson's New Universal Encyclopedia was offered for the purpose of showing the expectancy of life, and admitted over defendant's objection, because it had not been sufficiently identified as being a standard authority on that subject. The abstract shows that Gardner Cowles was asked: “Are you acquainted with Johnson's New Universal Encyclopedia?” He answered: “Yes, I had something to do with the book.” Appellee's amendment to abstract shows that he was asked further questions: “State whether it is a standard and scientific work.” He answered: “That is my impression of the work. I think it is so considered.” This question and answer appears in the bill of exceptions as originally filed, and sustains appellee's amendment to abstract. We think upon this identification the evidence was properly admitted.

On the morning following the close of the testimony, defendant asked to be permitted to read in evidence the deposition of Jacob Wolf, taken under stipulation; said deposition just having been received by that morning's mail. Defendant objected, because the case had been rested by both parties, which objection was sustained. The stipulation was that the deposition, when so taken, should be admitted in evidence on the trial subject to all just objections on the ground of immateriality, irrelevancy, and incompetency, and any other objection which may be hereto attached. It was in the discretion of the court to say that this deposition should be admitted at the time it was offered. We see no abuse of this discretion, and therefore no error in excluding the deposition.

2. The several assignments of error presenting the question of the sufficiency of the evidence to support the verdict will be considered together, and, first, as to the allegation of negligence. There is no testimony to support the charge of negligence in employing Thomas Gorman as brakeman. It appears that he was nearly 22 years of age. There is nothing to show that he was not physically and mentally qualified to learn and perform the duties of a brakeman. True, he was without experience in that business; but it is not negligence to employ one who is physically and mentally qualified for the business, merely because he has not yet had experience. It is only by instructing the inexperienced that the necessary supply of experienced help can be secured. The duties of an employer to an inexperienced employe are different from those he may owe to one of experience. He has to instruct him as to the performance of his duties, and to exercise towards him that degree of care which his inexperience requires; in other words, what would be due care in dealing with one of experience might not be due care in dealing with one who is known to be inexperienced. It appears beyond question that Corcoran, the rear brakeman, was directed by Costelo, the conductor, to...