Horan v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 14 October 1893
• Court: Iowa Supreme Court
• Parties: HORAN v. CHICAGO, ST. P., M. & O. RY. CO.

89 Iowa 328

56 N.W. 507

HORAN

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Iowa.

Oct. 14, 1893.

Appeal from district court, Woodbury county; George W. Wakefield, Judge.

The plaintiff was employed upon defendant's railroad as a brakeman. While coupling a flat car to a locomotive engine at Alton, in this state, his right hand was caught between the drawbars, and his hand was so crushed as that it became necessary to amputate the thumb and forefinger. He claims that the injury was received by reason of the defective condition of the railroad track at the place where he attempted to make the coupling. The defendant resisted the claim, on the ground that the railroad track was not defective and out of repair, and that the defendant is not liable, because the plaintiff violated a rule of the company in attempting to make the coupling without the use of a stick to guide the link into the opening, and that he thereby contributed to the injury by his own negligence. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff for $4,000. Defendant appeals.Swan, Lawrence & Swan, for appellant.

F. E. Gill and Lynn & Sullivan, for appellee.

ROTHROCK, J.

1. There is some controversy as to the question whether the railroad track was out of repair, and there is a conflict in the evidence in relation thereto. The injury was received at a point on the road where the business of the company required coupling of cars to be frequently made. The exact point where the plaintiff was required to make the coupling was nearly opposite to a water tank used to supply engines with water. The jury were fully warranted in finding that the earth between the ties was washed out, so that the fiilling or surfacing of the road was gone to such an extent as to interfere with the duties of a brakeman in making couplings at that point. The coupling was attempted to be made in the night, and the plaintiff carried a lantern, and the movement of the engine and plaintiff's other duties were such that, when he arrived at the place where the coupling was to be made, it was necessary that he should act with promptness in order to make the coupling, or to allow the engine and car to come together, and then make an opening, so that he could go in slowly and do the work; and the plaintiff was not familiar with the exact condition of the track at that point. In view of these facts, we think the jury were fully warranted in finding that the circumstances surrounding the plaintiff were such that, acting as he was, in an emergency, he was not chargeable with contributory negligence in going between the cars when he did, and attempting to make the coupling.

2. In the course of the trial, counsel for the defendant made a number of objections to evidence, and took exceptions to the rulings of the court thereon. It was objected that the plaintiff was permitted to state as a witness that the coupling was attempted to be made “in the yards of the defendant.” It is claimed that this is a mere conclusion of the witness. We think the evidence was competent. It was no more than locating the place of the injury. It is always allowable for a witness to state that an occurrence took place at a particular place, as in a certain town or village. But even if it be thought that the evidence was technically a conclusion, rather than a fact, it was without prejudice, because in the same connection the witness stated that switching and coupling was done at and near that place. The only object of the evidence was to show that the coupling was not required to be made at an unusual place, and that fact appears from all the evidence on that point, and it was wholly immaterial whether it was within the limits of the yards.

3. The plaintiff was asked if he looked, as he usually did, when he went in to make a coupling. The answer was, “Oh, no; I did not have time to look.” The defendant moved to strike out the last part of the answer as not responsive. In reply to the motion, the court remarked: “It is not responsive, but you can cross-examine him about it without asking any other question.” The ruling was without prejudice. It was the right of the plaintiff as a witness to state fully all facts in connection with the transaction, whether he looked at the track, or whether he had time to examine it and make the coupling. He did give all these facts in answer to proper questions, and it was wholly immaterial whether the answer to this particular question was responsive or not.

4. The plaintiff was asked what caused him to get his hand caught. This question was objected to as calling for a conclusion. In response to the objection, the court said: “He may state the facts.” The answer was: “By the defect being in the road, and slipping off the tie.” The answer was objected to as not stating facts, but the conclusion of the witness. The court, in response to this objection, said: “As far as it is a conclusion, the jury will find for themselves what the case is. The direction of the court was that he should state the facts as they occurred, rather than his...