Hawley v. The Chicago, Burlington & Quincy Railway Co.
| Decision Date | 21 October 1886 |
| Citation | 29 N.W. 787,71 Iowa 717 |
| Parties | HAWLEY v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY |
| Court | Iowa Supreme Court |
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.
AFFIRMED.
Runnells & Walker, J. W. Blythe and H. H. Trimble, for appellant.
Nourse & Kauffman, for appellee.
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 injured by 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 twenty-five to thirty miles an hour. The night was dark, and the hand car could not be seen more than one hundred and twenty-five 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 engineer, 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 ten or fifteen minutes, and, according to some of the testimony, that it would not start for fifteen minutes. There was evidence tending to show that it started in less than ten 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.
I. 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. R'y Co., 64 Iowa 513, 17 N.W. 31, and 69 Id., 296.
II. 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 it might be consistently with the averments of the proposed amended answer, the circuit court could not treat the case otherwise than as withdrawn.
III. 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 that ten or fifteen minutes. Under the evidence, the jury might have found that the engineer merely stated that he should not start for ten or fifteen minutes. Whether the jury should regard the statement as an agreement, or a 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 twenty-five to thirty 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 is 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 ten minutes; and if the jury had believed this evidence, and believed also that the engine did not start in less than ten 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 ten 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 fifteen 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...
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