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

• Decision Date: 15 April 1919
• Docket Number: 30721
• Citation: 172 N.W. 268,185 Iowa 1227
• Parties: WILLARD L. KING, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

172 N.W. 268

185 Iowa 1227

WILLARD L. KING, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 30721

Supreme Court of Iowa, Des Moines

April 15, 1919

Appeal from Johnson District Court.--R. P. HOWELL, Judge.

ACTION for damages consequent on a collision with defendant's train resulted in judgment for plaintiff. The defendant appeals.

Affirmed.

F. W Sargent, Frank F. Messer, and Robert J. Bannister, for appellant.

Otto & Otto and Dutcher & Davis, for appellee.

LADD C. J. EVANS, GAYNOR, PRESTON, and STEVENS, JJ., concur. SALINGER, J. (dissenting).

OPINION

LADD, C. J.

I.

About August 2, 1918, the plaintiff was engaged in cutting weeds on the defendant's right of way in the vicinity of the Iowa City Canning Company's Works. This was being done with a team and mower owned by him. The company, through its foreman, Wachs, had employed one Norval Letts, then 17 years of age, to keep a lookout for defendant's trains. About 4:30 o'clock in the afternoon, while plaintiff was operating his mower, one of defendant's passenger trains approached from the east, at a speed of from 35 to 40 miles an hour, and, as is alleged, negligently omitted to give any signal or warning of its approach, of which plaintiff was unaware; and, by reason of such neglect, and a like neglect on the part of Letts, and without fault on his part, said train struck plaintiff, the team, and mower, seriously injuring him, killing one of the horses, injuring the other, and demolishing the mower. The petition further alleged that defendant knew, or by the exercise of ordinary care could have known, that plaintiff was engaged in mowing on its main track and switches, and was in a place of danger, and that, in the exercise of ordinary care, defendant's employee could have stopped the train and avoided the collision, but failed so to do, in consequence of which the injuries mentioned occurred. A general denial and charge of contributory negligence were interposed by defendant's answer.

That plaintiff, as employee of defendant, was engaged in cutting the grass along defendant's right of way, is not disputed. He had done so for several years, but not previously as close to the track as required when hurt. He was employed by the section foreman, who undertook to provide "someone to take care of him,"--that is, to keep a lookout for approaching trains, and assist him in the work. Norval Letts undertook so to do. As testified by plaintiff, the work had proceeded until, "in the afternoon, I was on the north side of the track; I started on the north rail by Smith's Crossing. I was pretty near to the end when the train overtook me,--I guess about a quarter of a mile, I should think,--maybe a little better. Going along this track, you have to move awfully slow, got to hold your horses tight, keep them exact on the rail, and keep the lines tight in your hands. I had a rope on the end of the sickle bar." He then explained that he had removed the dividing board, and put a rope on in its place, long enough so that the boy would not get into the machine; that the boy would raise the bar, upon approaching an obstruction. "Where this accident happened, it was graded 10 to 12 feet high." A signal post was at that point, north of the track. As the mower reached it, "the boy made a scream; raised the sickle bar up. I supposed he caught on the bar. I look over my shoulder this way around, and it (train) was right behind me, and I immediately jumped off the seat to save myself,--I was scared so bad. Before I could get away from the machine,--smash I didn't know no more; I was gone to the world."

On the other hand, the engineer testified that he gave four short whistles, when within 200 or 300 feet of plaintiff.

"I did not know just exactly the distance. I saw a man come from the north side of the team, go to the south side. That was after I gave this warning whistle. I had run a little west from where I gave the signal. He reached down for something. I do not know what he was doing. I supposed he was going to pick up the lines and drive his team away; then he turned around, and gave me his signal to stop. He gave this signal with his hat."

And then the collision.

Letts swore that, when about 15 feet from the block signal, the team was started, plaintiff walking on the south side of the mower; that, on reaching the block signal, he raised the sickle bar, and, as it caught between some boards running to the signal block, the knives dropped down.

"The train was right on top of the hill, when I seen it first, about half a mile away. I hallooed to him that the train was coming. He drove up in there; then he got caught. I saw the train before the sickle bar got caught. After the machine was caught there, Mr. King told me to try to pull the bar out, and I tried it. He kept going ahead with his team, kept pulling his team; he hit them with the lines. He was in the middle of the track. We have to drive between the block signal and the track, to get through, but he could have went down below and around. Q. Now, after Mr. King pulled his team over, as you say he did, what did he do, if anything, if he did anything more,--before this train struck? A. Why, he unhooked one tug, run around, unhooked the gray horse tug,--just run around. When he got half way, the train hit. He ran around to the south. The gray horse tug he unhooked was on the north side. Just after he unhooked the gray horse tug on the north side, he run around, was going to unhook the other tug of the other horse. Just about that time, I jumped down hill. I was not close to it when the train struck the mower. When I was on the edge of the ties yet, the train was close to me. I was down the hill when the train struck the mower."

These excerpts from the evidence indicate the nature of the evidence bearing on the issues as to defendant's employee's alleged negligence and that of Letts, as well as the alleged contributory negligence on the part of plaintiff.

II. After Letts testified as stated, he was asked to "state whether or not there was enough time elapsed between the time you called to him, "There is the train,' and the time it struck the mower, for him to have stepped out of the way?" An objection as calling for an opinion and argumentative was sustained, and, we think, rightly so. To answer it, he must first have concluded at what speed the train was moving, where the train was at that time, how a person of ordinary prudence would be likely to have acted before the mower was hit, and what efforts he would have made to save himself. The inquiry exacted a conclusion, to be drawn from many controverted facts, and, owing to this, was not permissible. Moreover, it required of the witness to say what the jury necessarily should have passed on: that is, whether, notwithstanding all that happened, he had time to have stepped away, and avoided injury. If, in the exercise of reasonable care, he had time enough to escape, there could have been no recovery for the personal injuries as claimed. All matters bearing on the issue submitted to the witness were shown the jurors, and they were as well qualified as the witness to pass thereon. The ruling is to be distinguished from that in Boice v. Des Moines City R. Co., 153 Iowa 472, 133 N.W. 657, where objection to this question, propounded to plaintiff, was overruled: "Whether or not, if the conductor had not asked you to stop, you would have had time to get on the car before it started?" Without approving this ruling, the inquiry related to what the witness could have done in a certain time; while, in the case at bar, the inquiry called for the witness' judgment as to whether another could have stepped out of the way of a moving train, in a time to be estimated by the witness from conflicting evidence. For these reasons, there was no error in the ruling.

III. The engineer operating the train, when asked if "sand is of any benefit when you have a dry rail," answered:

"Not to amount to anything. * * * Q. It wasn't raining that day? A. I know it wasn't,--this sand wouldn't amount to anything. Q. I will put it in another form. You don't mean to say to the jury on a dry rail sand won't help you stop a train? A. It doesn't amount to very much. Q. It does some? A. Some,--it might,--not very much. Q. It is carried on the engine for that purpose, isn't it? A. To a certain extent."

Re-direct Examination.

"Q. For what purpose is sand carried on the engine? A. For a bad rail. Q. You mean wet or slippery rail? A. Yes, or any frosty morning, or dew on the rail,--anything like that. That is when you are supposed to use your sand, but on occasions like that we are not supposed to use that sand."

A motion to strike out what he is supposed to do, as incompetent, immaterial, and irrelevant, was sustained.

As the collision occurred in an afternoon of August, there could have been no frost nor dew; and therefore, whether "you are supposed to use sand" on a frosty morning, or when dew is on the rail, is immaterial. The last clause either refers to where the rail is dry, or is meaningless. If reference was had to a dry rail, in mentioning "occasions like that," then the ruling was favorable to defendant, and it cannot be heard to complain, for that no sand was used in stopping the train. The context indicates plainly enough that the witness, by saying what was supposed to be done or omitted, had reference to when the sand should be used, or customarily was used. He was qualified to testify on the subject, and we discover no error.

IV. An instruction that there was no evidence warranting the submission to the jury of the issue of the last fair chance was requested and refused, and defendant moved to strike all evidence bearing thereon from the record. This...