Nosler v. Chi., B. & Q. Ry. Co.

• Decision Date: 27 October 1887
• Citation: 34 N.W. 850,73 Iowa 268
• Court: Iowa Supreme Court
• Parties: NOSLER v. CHICAGO, B. & Q. RY. CO.

73 Iowa 268

34 N.W. 850

NOSLER

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

Supreme Court of Iowa.

October 27, 1887.

Appeal from circuit court, Wapello county; DELL STUART, Judge.

The petition of H. C. Nosler, appellee, states that there is an ordinance in the city of Ottumwa making it unlawful to run a railroad train through the city at a greater rate of speed than six miles an hour, but that the defendant, disregarding such ordinance, and in a reckless and negligent manner, ran its “fast U. S. mail train,” going west on its road, at the speed of thirty miles an hour, within the corporate limits of said city, without ringing the bell, or sounding the whistle; and that at a place in said city where Tisdale street, in said city, crosses defendant's road, recklessly and negligently ran said train against plaintiff's team and killed both of his horses, and broke and damaged his wagon and harness. The allegations of the petition were denied, and the contributory negligence of the persons in charge of the team was pleaded by the defendant. Trial by jury, verdict and judgment for the plaintiff, and the defendant appeals.David C. Beaman, for appellant.

Chambers & McElroy and Williams & Jaques, for appellee.

SEEVERS, J.

Counsel for the appellant, in argument, concede that the contributory negligence of the persons in charge of the team is the material issue in the case, yet it is claimed the court erred in the admission or rejection of evidence which had little, if any, bearing on such question, or upon the merits of the controversy. Nevertheless, we shall briefly consider them, for the reason that counsel seem to believe that the rulings of the court in the respects mentioned constitute a prejudicial error.

1. The plaintiff was permitted to prove the number of residences south of the railroads in Ottumwa. It is said this is erroneous, because there is no allegation in the petition that by reason of the peculiar surroundings the defendant was required to operate the train with greater care than usual. But we think it was proper to show all the surroundings, and, as far as could be, to show the exact situation, so that the jury could determine whether the defendant had exercised such degree of care as it was required to do under the existing circumstances and conditions.

2. The plaintiff was allowed to introduce evidence tending to show, by experimentsmade, how long it would take a team of horses to walk from the Rock Island crossing to the place where the accident occurred. It is conceded that when the persons in charge of the team were at the crossing they could have seen along the defendant's track for several hundred feet in the direction the train was coming. There was evidence tending to show that for a portion of the distance between the two tracks, because of existing buildings, they could not see the track or train as far as could be done at said crossing. It became material, therefore, to ascertain what length of time a team of horses would require to walk the distance between the Rock Island track and where the accident occurred, and also to determine the speed of the train. The Rock Island crossing was well-known and permanent. There could be no mistake as to the distance between the two tracks. The experiments were made by timing the train with a stop-watch, and a team of horses walking from the crossing to the place of the accident. We think the evidence was admissible, and that the case is distinguishable from Klanowski v. Railway Co., 31 N. W. Rep. 275, for the reason that the experiments were carefully made, and there was no doubt as to the starting point at the crossing.

3. One Doran was asked what the horses were worth for draying and hauling heavy loads. This question was objected to and the objection overruled. There was evidence tending to show that the horses were adapted to and suitable for the purposes stated. We fail to see any valid objection to the evidence.

4. A map of the city of Ottumwa, purporting to have been made by H. L. Waterman, city engineer, was offered in evidence, and it was proved that the map was recognized and used in the city as substantially correct. Against the objection of the defendant, the map was introduced in evidence. In so ruling the court did not err. Code, § 3653.

5. The defendant sought to prove that the engineer was a careful man, but the court refused to allow the evidence to be introduced, upon the theory, we may suppose, that such fact had no tendency to prove he was not negligent on this particular occasion. The defendant offered to prove that the engineer did not run his train any faster than did other engineers of the “fast mail.” To this counsel for the plaintiff objected, and stated: “No complaint is made of any negligence in the engineer, further than that he was running faster than authorized by law.” The court said: “The plaintiff has introduced proof tending to show this engineer runs his engine different from others. * * * Now it is right that the other parties have their version.” The evidence was therefore admitted, and of this the defendant does not complain; but it is insisted what counsel said is a “fair construction of the petition,” and that he was bound by the statement of his counsel, and therefore the admission of evidence on the ground there was an issue of “general negligence” was erroneous. If such evidence was admitted, counsel for the defendant failed to object to it. The case seems to have been tried by both court and counsel upon the theory that the engineer was charged in the petition with general negligence, and we think such is the fair construction of the petition. Besides this, we do not think the admission made by counsel was, under the circumstances, binding on the plaintiff. It cannot be said the plaintiff was estopped thereby. Frederick v. Gaston, 1 Greene, 401. The engineer testified that he was about 200 feet from the crossing when he saw the team approaching the crossing, and he said: “Very frequently they come within ten or fifteen feet, and then stop. I was not doing anything towards stopping the engine. When they got about ten or fifteen feet from the railroad, I saw they were not going to stop, so I gave the alarm-signal with the whistle. Think the whistle was open till the horses were struck. I set the air-brake with one hand, and, after I let go the whistle with the other hand, I reversed the engine about the time I struck the team. Am not sure about giving steam in the back motion. Did all there was time to do.” Thereupon he was asked by counsel for the defendant to state “whether or not you did everything you could, from the time you discovered the team was likely to be struck until it was struck.” An objection to this question was properly sustained, for the reason it asked for the opinion of the witness; and, besides this, he had just stated all he did, and in fact answered the question. The court, therefore, did not err in overruling the question asked.

6. In the same connection, the counsel for the appellant contends that the case should have been submitted to the jury on the theory that the only negligence claimed was that the train was running faster than authorized by law. This claim is based on the statement of counsel, above set out, to the effect that this is all that was claimed. But the court submitted to the jury the question whether the engineer was negligent in not stopping, or attempting to stop, the train sooner than he did. Counsel for the appellant claim there was no such issue, and that, because counsel for the plaintiff made the statement they did, therefore such issue should not have been presented to the jury. The case, as we have said, was tried on the theory that there was such an issue. Evidence was introduced on both sides...