LeHman v. Minneapolis & St. L. R. Co.

• Decision Date: 20 November 1911
• Citation: 133 N.W. 327,153 Iowa 118
• Court: Iowa Supreme Court
• Parties: LEHMAN v. MINNEAPOLIS & ST. L. R. CO.

153 Iowa 118

133 N.W. 327

LEHMAN

v.MINNEAPOLIS & ST. L. R. CO.

Supreme Court of Iowa.

Nov. 20, 1911.

Appeal from District Court, Hancock County; J. J. Clark, Judge.

Action to recover damages for personal injuries received by plaintiff while in defendant's employ as a sectionman, alleged to have been due to the negligence of the section boss in charge of the operation of a hand car on which plaintiff was riding, resulting in the derailment of the car and injury to plaintiff. The jury returned a verdict for the plaintiff for $6,000. On motion for a new trial, in which various grounds of error were alleged, the court gave the plaintiff the option of accepting a verdict for $4,500, and, on the acquiescence of plaintiff in this reduction, refused to set aside the verdict as thus modified. The defendant appeals. Affirmed.W. H. Bremner and J. E. Wichman (Geo. W. Seevers, of counsel), for appellant.

Senneff & Bliss, for appellee.

McCLAIN, J.

The facts relating to the nature and extent of the accident resulting in the injury to the plaintiff, which the jury may have found as substantially supported by the evidence, were these: Plaintiff, 19 years of age, under the direction of one Nelson as section foreman, and with the assistance of another sectionman named Willodson, started with a hand car from the carhouse at Britt, for the purpose of going in a southwesterly direction on the track of defendant to his place of work. A young lady, Miss Prince, who was teaching at a schoolhouse south of the town, accompanied them on the car by their assent. As a strong wind was blowing in the general direction in which they were to proceed, they had rigged up a sail upon the car, consisting of canvas attached at one side to a pole about 8 or 9 feet long, standing up from the car, the other edge being attached to another pole, controlled by a rope, by the loosening or tightening of which the speed of the car might be regulated. The perpendicular width of the canvas was about 4 feet, and it was placed about 6 feet above the car. The use of this sail obviated the necessity of working the handles of the car. After they had gone about 600 feet, and at a place where the track was rough, the car, which had attained a speed of nearly 20 miles an hour, jumped from the track, and plaintiff was thrown off and injured. The grounds of negligence submitted to the jury were that the foreman placed the plaintiff in a position of danger; that he used a sail under improper conditions of the wind and track; that he failed, by the brake or other means, to control the speed of the car, and allowed it to run too fast under the circumstances; and that the track was negligently allowed to be in an unsafe condition for travel with a hand car. The jury was told that if any one of these grounds of negligence was shown to have existed, and to have resulted in injury to the plaintiff, without negligence on his part, he was entitled to recover.

[1] 1. There was some evidence tending to show that the car was thrown off the track by a piece of wood about an inch or an inch and one-quarter in diameter, lying across or along one of the rails, and for the purpose of showing that such an obstruction on the rail would not have derailed the car a witness was called for plaintiff in rebuttal to testify that he had, in operating hand cars, run over obstacles, such as the burrs of bolts, from an inch to an inch and one-quarter thick. He was then asked whether, under such circumstances, the car jumped the track, and this question was objected to, and, the objection being overruled, the witness answered that it did not. Error is assigned on this ruling, on the ground that the conditions were not so substantially similar as to render testimony of what had resulted when a car ran over a burr competent and material, as tending to show that this car was not thrown off the track by the piece of wood. Cases, relating to experiments made after the happening of an accident, are cited, in which it is said that evidence of such experiments is not competent, unless the conditions under which they are made are substantially similar in material respects to conditions under which the accident happened. We think there may be a material difference between testimony relating to what has happened in the experience of a competent witness under somewhat similar conditions, and testimony as to what happened in a prearranged experiment. However this may be, we think the conditions referred to by the witness were sufficiently similar to those existing at the time of the accident to justify the court, in the exercise of its discretion,in receiving the evidence. The question raised by testimony, tending to show that the car ran over a piece of wood, simply involved the effect of an obstruction on the rail of about the same nature as the obstruction afforded by the burrs of bolts over which the witness said he had run cars without their being thrown from the track. Assuming the car to be operated in each case in a proper manner, the testimony would tend to show that a car would not be derailed by such an obstruction. Defendant was attempting to prove that the accident resulted from a piece of wood on the track, and not from any of the causes which plaintiff was seeking to impute to defendant as constituting negligence. It would certainly tend to show that the car was not necessarily derailed by the piece of wood, and the testimony of the witness that cars were not in his experience ever derailed by such an obstruction would support plaintiff's case. Heinmiller v. Winston, 131 Iowa, 32, 107 N. W. 1102, 6 L. R. A. (N. S.) 150, 117 Am. St. Rep. 405;Kimball v. Citizens' Gas & Elect. Co., 141 Iowa, 632, 118 N. W. 891;Tackman v. Brotherhood, 132 Iowa, 64, 106 N. W. 350, 8 L. R. A. (N. S.) 974; 1 Wigmore, Evidence, § 448. “The admission or exclusion of testimony of this nature is largely a matter of discretion, and, unless it appear that such discretion has been abused to the prejudice of the complaining party, the ruling will not be disturbed on appeal.” State v. Nowells, 135 Iowa, 53, 109 N. W. 1016. The cases relied upon for appellant, so far as they seem to have any material bearing on the question, are cases where the appellate court has sustained the action of the lower court in refusing evidence of this character. See Osborne v. Simmerson, 73 Iowa, 509, 35 N. W. 615;Randolf v. Bloomfield, 77 Iowa, 50, 41 N. W. 562, 14 Am. St. Rep. 268;Bach v. Iowa Central R. Co., 112 Iowa, 241, 83 N. W. 959;Lake Erie & W. R. Co. v. Mugg, 132 Ind. 168, 31 N. E. 564. We think the testimony was such as to justify the exercise of the discretion of the trial judge in receiving it.

[2] 2. The question as to negligently placing plaintiff in a position of danger was properly submitted to the jury under the evidence; for it appeared that the two safest places on the car under the conditions of its operation with a sail were at the sides, between the handlebars, and that these two places were occupied by Willodson and Miss Prince. Nelson, the foreman, sat on one of the rear corners of the car, and after it started he directed plaintiff to get up in front; whereupon plaintiff took a position, standing on the front of the car, facing sidewise, and without support, save as he...