Hawley v. Chi., B. & Q. R. Co.

• Decision Date: 21 October 1886
• Citation: 71 Iowa 717,29 N.W. 787
• Court: Iowa Supreme Court
• Parties: HAWLEY v. CHICAGO, B. & Q. R. CO.

71 Iowa 717

29 N.W. 787

HAWLEY

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Iowa.

October 21, 1886.

Appeal from Polk circuit court.

Action for a personal injury. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.Runnells & Walker, J. W. Blythe, and H. H. Trimble, for appellant.

Nourse & Kauffman, for appellee.

ADAMS, C. J.

One Faught, an employe upon the defendant's road, was, on the night of the twenty-fourth of June, 1882, operating, with others, a hand car on the road, going south from Davis City, and, while so engaged, was injuredby reason of an engine upon the road being run against the hand car while following it from behind. Faught's claim for damages he has assigned to the plaintiff.

The questions presented to the jury were as to whether any of the persons in charge of the engine were guilty of negligence in running upon the hand car, and, if so, whether the plaintiff had shown that he was free from contributory negligence. A large number of errors are assigned. For a proper understanding of them it is necessary to set out a little more in detail the facts connected with the accident. As to some of them there is some dispute; but it is undisputed that on the night in question Faught was sent with his hand car from Andover, Missouri, northward, with an important message to one Sullivan, who was at Davis City, in charge, as conductor, of the train, which included the engine by which the injury was done. Faught went to Davis City, and delivered his message to Sullivan, and started to return home, when he was overtaken by the engine which was being run by one Southerland, as engineer. Obedience to the message required that the engine should go southward over the track upon which Faught had started southward with his hand car a few minutes before. At the time of the accident the engine was running around a curve at from 25 to 30 miles an hour. The night was dark, and the hand car could not be seen more than 125 feet ahead, and was, when seen, about that number of feet distant. At the rate of speed at which the engine was running it could not be stopped in that space. It is not clearly shown that either Sullivan, the conductor, or Southerland, the enneer, knew for a certainty that Faught with his gang had left Davis City with the hand car, but it seems to have been distinctly understood that they were either to precede or follow the engine, and it is shown beyond controversy that a question was raised as to whether the engine would be delayed long enough to enable the hand car to precede it with safety. Faught was told, according to the engineer's testimony, that the engine would not start for 10 or 15 minutes, and, according to some of the testimony, that it would not start for 15 minutes. There was evidence tending to show that it started in less than 10 minutes, and ran at a higher rate of speed than was necessary. While, as before stated, it is not shown beyond dispute that either the conductor or engineer knew for a certainty that Faught had started when the engine left Davis City, it seems to be indisputable that it could have been ascertained by slight observation whether he had or not, and there is some ground for the inference that the engineer, if not the conductor, supposed that he had. The negligence is alleged to consist in starting so soon, and in running at so high a rate of speed, and especially around a curve where the head-light could not reveal the hand car at a very great distance. Some other facts will be stated in the course of the opinion, but the foregoing statement is sufficient to enable us to enter properly upon the specific consideration of the errors assigned.

1. Some questions are raised in regard to the right of the plaintiff, as assignee of Faught, to prosecute the action. We regard these questions as substantially disposed of by the previous decisions of this court, and especially by the case of Vimont v. Chicago & N. W. Ry. Co., 28 N. W. Rep. 612.

2. After the cause had been set down for trial upon a day named, the defendant asked leave to file an amendment to its answer, averring that Faught, previous to his assignment to the plaintiff, commenced an action against the defendant for the same claim in his own name; that said action had been removed to the circuit court of the United States; and that no order had been made dismissing it, and that the defendant had not stipulated that it should be dismissed. The court refused to allow the amendment, and the defendant assigns the refusal as error. The proposed amended answer does not aver that the action brought by Faught was still pending. On the other hand, such averment seems to be ingeniously avoided. We suspect the fact to be that Faught had withdrawn his action, or ordered that the same be dismissed, without any distinct order to that effect being made by the court. If the fact is as we suspect, and as might be consistently with the averments of the proposed amended answer, the circuit court could not treat the case otherwise than as withdrawn.

3. Before the submission of the cause, the defendant propounded a large number of special interrogatories, and requested that the court require the jury to answer them, which the court refused to do, and the defendant assigns the refusal as error.

We cannot properly set out the interrogatories in full. They all have the common characteristic that they call for a finding of fact not necessarily determinative of the case. The fourth and fifth questions, for instance, inquired whether the engineer agreed with Faught, or only gave an opinion, that he would not start his engine in less than 10 or 15 minutes. Under the evidence the jury might have found that the engineer merely stated that he should not start for 10 or 15 minutes. Whether the jury should regard the statement as an agreement or mere statement or an opinion, their finding upon the question would not be decisive of the case; nor, indeed, one of any great importance, viewed in connection with all the other evidence in the case. If Faught did not start from the immediate presence of the engineer, it was so nearly from his immediate presence we have not a doubt that Faught took it for granted that the engineer knew he had gone, and would not start sooner than he had stated, or, if he did, would not run him down upon a curve in a dark night at a speed of from 25 to 30 miles an hour. If, then, the answer sought had been most favorable to the defendant, it would have gone but little way towards showing that the defendant was free from negligence, or that the plaintiff was guilty of it. The same may be said of the other interrogatories.

We do not say that a party may not be entitled to have a special interrogatory submitted, even where it be such that an answer most favorable to the party would not entitle such party to a verdict. But we do not think that a party is necessarily entitled to a special finding upon every circumstance which might have some bearing upon the case. If we should hold that he is, it might become a favorite mode of trial for each party, by requiring a special finding, to seek to give prominence to every circumstance which he regarded as more or less favorable to him.

It might seem, at first, that the sixth interrogatory called for a material finding. That interrogatory is in these words: “Did Southerland start his engine south before the expiration of ten minutes?” This interrogatory pertains to the very matter in which the negligence was alleged to consist. There was evidence tending to show that Faught might have expected that the engine would start in 10 minutes; and if the jury had believed this evidence, and believed also that the engine did not start in less than 10 minutes, they might have found that the defendant was not negligent. But an answer to the interrogatory, to the effect that the engine did not start in less than 10 minutes, would not alone have been of any special value to the defendant, because there was evidence tending to show that Faught had reason to expect that the engine would not start for 15 minutes. The special interrogatory should have been as to whether the engine started sooner than Faught had been told that it would.

Another interrogatory is in these words: “Did he [Faught] start said hand car in disregard of the request of the conductor, Sullivan, to not start said hand car until the return of the engine?” The defendant claims that, if Faught did start in disregard of such request, he was guilty of contributory negligence. But we cannot say that he was necessarily. This will appear more clearly if we set out some of the evidence upon this point. Faught testified in these words: “Sullivan, the conductor, was there, and he said, ‘You had better not go now, as we are going to the Y to turn the engine.’ We took hold of the car, and had partly set it off of the track, when the engineer said: ‘You need not set it off, for we will not run out for fifteen minutes. We have not lit up nor oiled up.’ ” This remark by the engineer appears to have been made after Sullivan made his request or gave his advice not to start out with the hand car, and does not appear to have been heard by Sullivan. It was a fair question for the jury as to whether Faught was guilty of contributory negligence in view of what they might have found that the engineer said. Besides, there is no dispute as to what Sullivan said. Faught himself testified substantially as Sullivan did on that point. The defendant, therefore, has the benefit of the fact without a special finding, and is not prejudiced by the refusal to submit the special interrogatory upon that point.

Some of the questions appear to us to be ambiguous. Take the twelfth: “Did Southerland exercise ordinary care in the manner of running his engine after leaving the depot, and prior to the accident?” This question we think that the jury would have been obliged to answer in...