Hatfield v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 16 June 1883
• Citation: 16 N.W. 336,61 Iowa 434
• Parties: HATFIELD v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Iowa Supreme Court

16 N.W. 336

61 Iowa 434

HATFIELD v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

June 16, 1883

Appeal from Appanoose District Court.

ACTION by an employe of the defendant to recover damages caused by his being injured through the negligence of a co-employe. Trial by jury, verdict and judgment for the plaintiff, and defendant appeals.

AFFIRMED.

M. A Low, for appellant.

Geo. D Porter, for appellee.

OPINION

SEEVERS, J.

The plaintiff was in the employ of the defendant, working on what is called a construction-train, and engaged with others in loading iron rails on the train. The rails were lying alongside of the track, and while loading the same the injury was received.

I. The negligence of the defendant or its employes is thus stated in the petition:

"That as this plaintiff and the other men were carrying up the iron rails, the man at the rail pile, next the car, who was put there with an iron bar to loosen the rails and roll them back to the men so that they could get a hold of the rails without injury to themselves, the agent and conductor of defendant, Pat Dunn, ordered the man at the rail pile to roll the rails down. He rolled two rails down. Then said Pat Dunn ordered the men to take hold of the rails and put them on the car. The man at the rail pile told Pat Dunn to hold on, that the rails would roll down, and then Pat Dunn ordered the men to take hold of the rails, and 'no monkeying about it,' and put them on the cars. The man at the rail pile told Pat Dunn the second time that the rails would roll down, and while the man said this at the west end of the rails, the men took hold of the rails to put them on the cars, and, while doing so under the order of Pat Dunn, two rails rolled over or fell over from where they were on to the plaintiff's right foot, smashing and mangling the same and cutting off his toe," and otherwise injuring him. There was evidence tending to support the allegations of the petition.

The plaintiff was a witness in his own behalf, and, after stating how the accident occurred and the extent of the injury, he was asked: "What do you say about following strictly the requirements made by the physicians." This question, and another embracing the same thought, was objected to, because "it is not shown what the directions given by the physicians were." The objection was overruled, and the witness answered: "I did as near as I could."

We think the ruling of the court is correct. It was competent for the plaintiff to testify as he did. The defendant on cross-examination could inquire what the physicians' directions were, and what the plaintiff did. The mere fact that it had not been shown what the directions of the physician were, would not render the evidence offered incompetent. It is said, there was evidence tending to show that with proper care the injury would not have been permanent, and for this reason, it is said, the plaintiff should not have been permitted to testify as to his having followed some undisclosed direction. No such evidence had been introduced at the time the ruling was made, and the court could not anticipate what evidence would be introduced. No motion was made to strike out the evidence. It must not be taken for granted from what has been said that the objection to the question was well taken, even if it has appeared at the time the ruling was made that evidence had been introduced tending to prove as above stated.

II. The allegations of the petition were denied, and the defendant pleaded that the plaintiff had been guilty of contributory negligence. Counsel for the plaintiff asked a witness: "What do you say as to his (the plaintiff) being careful at the time, under the circumstances." This question was objected to on the ground that it asked for a "conclusion and opinion of the witness." The objection was overruled, and the witness answered: "I could not say exactly how careful he was. I suppose he was as careful as the rest of us. That is the only way I ever saw them loaded--the way we were at work there."

Conceding the question to be objectionable on the ground stated, this will not justify a reversal, unless the answer was responsive and prejudicial. When the witness said, "I could not say how careful he was," he had answered the question. The residue of the answer was not responsive. He was not asked as to the care or negligence of the other men, nor was he asked to compare the care of the other men at work with that exercised by the plaintiff. The question was not so framed as to direct the response made as to the usual way of loading iron rails. If an improper question is asked, and matter elicited which is not responsive thereto, we do not think the error of the court in overruling an objection to the question will justify a reversal. The attention of the court should be called to the irresponsive matter, and the court asked to strike it out. A party should not be bound by such an answer, and it is not his duty (that is, the party asking the question), to ask that it be striken out, and, clearly, it is not the province of the court to do so on its own motion.

III. Complaint is made of the third paragraph of the charge, because the court said to the jury that they must determine "whether or not the evidence shows" that the plaintiff "was injured about said time substantially as he claims in his petition." It is said, the court must determine the issues, and should not refer the jury to the pleadings to ascertain what they are. This is true; but taking the instructions all together, the court did fully and clearly state the issues; and the reference in the single sentence above set out to the pleadings, we do not think was either misleading or prejudicial. The sentence we have quoted is taken from a long instruction which, taken with other instructions, states the issues fully and fairly.

IV. The fifth paragraph of the charge covers nearly a page of the printed abstract. The only objection thereto is, that the court directed the jury to inquire whether the foreman, Dunn was "negligent in permitting the rails to be in the position they were at the time, as claimed by plaintiff's attorney." It is said there was no such issue, and that the negligence of the...