Pappas v. Evans, 47798

• Decision Date: 05 June 1951
• Docket Number: No. 47798,47798
• Citation: 48 N.W.2d 298,242 Iowa 804
• Parties: PAPPAS v. EVANS.
• Court: Iowa Supreme Court

Page 298

48 N.W.2d 298

242 Iowa 804

PAPPAS v. EVANS.

No. 47798.

Supreme Court of Iowa.

June 5, 1951.

William Pappas and Leslie L. Boomhower, of Mason City, for appellant.

John A. Senneff and Robert Bliss, of Mason City, for appellee.

SMITH, Justice.

Plaintiff, a railroad section foreman, was operating a railroad motor car in a southerly direction over the Chicago, Great Western Railroad track in Cerro Gordo County, Iowa, March 24, 1947. He was accompanied by two other section men, Martin and Staley, stationed respectively at the left and right front corners of the vehicle. Plaintiff sat on the left side behind Martin. The car had a low windshield over which the men could see.

As the motor car approached the crossing defendant's automobile came from the west over a graveled highway and struck it so near to its right front corner as to kill Staley, the section man there stationed. Plaintiff was injured and brings this action for resulting damages. There was a verdict for plaintiff. The trial court granted defendant a new trial and plaintiff appeals.

I. The trial court, after instructing the jury as to what constitutes proximate cause, added (in the second paragraph) a comprehensive statement of the law concerning concurrent negligence and then said:

'In this case if you find that the negligence of the defendant * * *, if any, concurred with the negligence of Oscar Staley or of Tony Martin (plaintiff's co-employees) in causing the injury, the negligence of either * * * would be the proximate cause of the injury even though the negligence of neither * * * was the sole cause thereof, which is to say * * * the negligence, if any, of Oscar Staley or of Tony Martin, does not excuse the negligence, if any, of the defendant * * *.

'You are further instructed, however, that the plaintiff could not relieve himself of his duty to use care * * * by delegating it to someone else and if you in fact find that the plaintiff failed to use the care which * * * he was required to use, then he cannot excuse himself for such failure because of some negligence on the part of Staley or Martin.'

Defendant, by objection to instructions and in motion for new trial, urged that under the Record there was no question of concurrent negligence involved but that the negligence, if any, of Staley or Martin would be imputed to plaintiff 'who was the foreman under whose direction they worked, who had delegated this duty to them and he couldn't escape responsibility if their negligence in any way contributed, it would be his negligence.'

The trial court in granting new trial apparently adopted defendant's theory, saying that while the instruction was 'a correct statement of abstract law' it was not 'a correct statement of the law applicable to this case. (It) makes the defendant * * * liable if his negligence concurred with the negligence of * * * the two fellow workers of plaintiff. Neither * * * had any responsibility for the safety of plaintiff except as (he) may have delegated to them the duty * * *. It would seem that to whatever extent (they) were required to be on the lookout, they were acting on behalf of plaintiff and * * * their negligence, if any, would be the negligence of plaintiff and the instruction (on concurrent negligence) amounts to instructing * * * that the defendant would be liable if his negligence concurred with (that) of plaintiff.'

This whole reasoning is unsound. It rests on the erroneous assumption that plaintiff may have delegated to his fellow servants his duty (of avoiding contributory negligence) in such manner as to make their negligence in that respect imputable to himself. In other words, that by such delegation he made impossible any recovery by himself for personal injury caused by negligence of defendant without establishing not merely his own care but also that of his companions.

The last paragraph of the instruction (which defendant argues is correct) announces the impossibility of a delegation that would excuse plaintiff from exercising care. Plaintiff could not delegate his responsibility, neither could he enlarge it by delegation--by creating additional safeguards, the failure of which might constitute contributory negligence.

The real difficulty is there was no occasion for any instruction on either concurrent or imputed negligence.

The Record shows no conduct of either Martin or Staley requiring any reference to concurrent negligence. If it could be assumed they failed to keep proper lookout at the crossing that was not a violation of any duty they owed plaintiff. It did not concur with the claimed negligence of defendant. It was not a cause of the collision for which they could be held liable to plaintiff.

As to imputed negligence. Plaintiff was driving the motor car. He had full control of its movement as to speed, stopping and starting. There is no suggestion Staley or Martin had any responsibility for plaintiff's safety or that he had depended on them or either of them in that respect. He says 'I told Mr. Staley to look for everything, if he seen any broken rail or any car coming to the crossing, the same way I told Martin.'

This concerned their duty to their company, not to plaintiff. It was not a 'delegation' of responsibility for plaintiff's safety. There is no evidence he so considered it or relied on it. To apply the doctrine of imputed negligence here would be somewhat analogous to imputing to an automobile driver his guest's negligence in failing to protect him from injury.

The relationship of the men on the motor car as co-employees was not such as to justify an application of the imputed negligence doctrine. McBride v. Des Moines City Ry. Co., 134 Iowa 398, 407, 408, 109 N.W. 618; Grace v. Minneapolis & St. L. R. Co., 153 Iowa 418, 429, 430, 133 N.W. 672; Stoker v. Tri-City Ry. Co., 182 Iowa 1090, 1095, et seq., 165 N.W 30, L.R.A.1918F, 515. Defendant does not cite any cases to the contrary.

It is to be noted defendant requested no instruction on imputed negligence as he must have done had he desired such instruction. Teufel v. Kaufmann, 233 Iowa 443, 445, 6 N.W.2d 850. He apparently did not try his case on that theory.

II. Does it follow that because the whole instruction (other than the unquoted part pertaining to proximate cause) was unnecessary it was therefore prejudicial? Defendant argues it was confusing and contradictory. The argument loses much of its force in view of our conclusion in division I. If there could be no imputable negligence and there was no evidence of concurring negligence it is difficult to see how defendant was prejudiced. We do not think he was.

Defendant argues the last paragraph of the instruction is correct 'but whether right or wrong it was the law of the case' and that 'when you take' it and 'then take the other part * * * and say notwithstanding that the plaintiff was bound by the negligence of Staley and Martin, that if the negligence of Evans (defendant) concurred * * * the plaintiff could recover, the absurdity is manifest.' (Italics supplied.)

The italicized words above either beg the question or are assumed to follow of necessity plaintiff's inability to delegate his duty of exercising care for his own safety. Such conclusion does not follow. On the contrary, if plaintiff's duty was not delegated to plaintiff's co-employees their negligence might, under some circumstances, concur with defendants' to injure plaintiff.

We conclude the paragraphs complained of were unnecessary but not abstractly erroneous or contradictory.

Defendant cites cases to the effect that conflicting and confusing instructions are necessarily erroneous. The proposition is not applicable here. Unnecessary or immaterial instructions are not reversible where not prejudicial. 5 C.J.S., Appeal and Error, § 1764c, page 1132.

III. The inherent power or discretion of a trial court to grant new trial in a proper case is undoubted. Burke v. Reiter, Iowa, 42 N.W.2d 907, 910. And in order that an appellate court may be in a position to appraise such a ruling it is proper that the ground thereof be shown. Hensley v. Davidson Bros. Co., 135 Iowa 106, 112, 112 N.W. 227; Burke v. Reiter, supra.

Here however the trial court evidently based its decision upon Rule 244(h), R.C.P., 58 I.C.A., viz., upon an error of law occurring in the proceedings. No opinion is expressed in the ruling that the giving of the instruction was prejudicial except on the assumption that there was evidence under which the jury might have found some negligence of Staley and Martin contributing to the injury and imputable to plaintiff. Since there was no such evidence the court's ruling was unsupported in that regard. We have already pointed out the considerations which we think make untenable that assumption. Unnecessary instructions are not, as a matter of course, prejudicial.

IV. Defendant argues there were other grounds urged in his motion for new trial--grounds that would support the ruling though not so considered by the trial court. His right to this argument is unquestioned and unquestionable. Shaw v. Addison, 236 Iowa 720, 733, 734, 18 N.W.2d 796, and cases therein cited.

Some of those grounds were rejected by the trial court as referring generally to alleged errors in rulings on evidence without specifying any particular ruling and without any kind of identification or indication to point out the ruling or rulings complained of.

In argument here it develops one of these was a refusal to permit defendant, by cross-examination of plaintiff, to show the company rules and instructions as to plaintiff's duty of keeping a lookout at crossings.

Our own decisions have expressly held to what they denominate the majority rule, viz., that the law and not the rule of the company prescribes the standard of care at crossings required to be exercised by the company and its employees. Hoffman v. Cedar Rapids & Marion City Ry. Co., 157 Iowa 655, 139 N.W. 165; Carter v. Sioux City Service...