Reeves v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 10 November 1909
• Citation: 123 N.W. 498,24 S.D. 84
• Parties: REEVES v. CHICAGO, M. & ST. P. RY. CO.
• Court: South Dakota Supreme Court

123 N.W. 498

24 S.D. 84

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

Supreme Court of South Dakota

November 10, 1909

Appeal from Circuit Court, Davison County.

Action by M. A. Reeves against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Preston & Hannett, for appellant.

T. J Spangler, for respondent.

SMITH J.

Action for personal injury received by plaintiff while a passenger on defendant's railway train.

The jury returned a general verdict for plaintiff, assessing his damages at $1,500. Additional interrogatories were submitted to the jury, which with the answers thereto, were returned with the general verdict, and are as follows:

"(1) Did the train crew fail to exercise the utmost care and diligence in the making up, management, operating, or guarding of the train which caused or tended to cause the accident? Ans. Yes.

"(2) If so, state in what such failure consisted? Ans. The conductor and rear brakeman were not in position to view their train.

"(3) Was the rear brakeman in a place at the time of the accident which the utmost care and diligence for the safety of the passengers required compatible with the kind of train being run? Ans. No.

"(4) If not, where should he have been? Ans. In front of the coach or at some point on the train where he could view it.

"(5) What could have been done by the trainmen or any of them, if anything, to have prevented the collision which is alleged to have caused the injury to this plaintiff? Ans. Set the brakes."

Judgment was entered on the general verdict, and a motion for a new trial denied by the trial court. This appeal is from the judgment and the order denying a new trial. Proper assignments of error appear in the record which are grouped and discussed by counsel in appellant's brief under five heads, as follows: First. Error in receiving evidence over the objection of the defendant. Second. Error in excluding evidence offered by defendant. Third. Error in denying motion to direct a verdict in favor of the defendant. Fourth. Error in the court's instructions to the jury. Fifth. Error in denying defendant's motion for a new trial.

On March 27, 1905, plaintiff was a passenger on defendant's train, coming from Letcher to Mitchell. The train consisted of 17 cars, the caboose being at the rear end, a passenger coach in which plaintiff and several others were riding; next to the caboose, two cars with coal racks; the balance of the train consisting of ordinary freight cars. The train left Letcher about 8 o'clock in the evening. The only stop made was at Loomis, a small station a little less than half way to Mitchell, where some switching was done. After leaving Loomis, the train was run at a speed of 25 to 35 miles an hour, as estimated by the trainmen. The train crew consisted of the conductor, two brakemen, and the engineer and fireman all of whom were witnesses on the trial. The defendant's track between Letcher and Mitchell runs in a general southerly direction until about a mile from Mitchell, where it turns and runs east to the station. Upon leaving Loomis, seven or eight miles north of Mitchell, the conductor went through the passenger coach to take up tickets, and then went into the caboose and changed his clothes and washed, made up his report, and when about a mile from Mitchell went up into the cupola in the caboose, looked out of the window to observe the train, and thought it was running in one section. Wynn, the rear brakeman, on leaving Loomis, went into the caboose, and went to work finishing bills, and making up switch lists and reports, which he handed to the conductor, Foster, about a mile and a half out of Mitchell. He then got his mittens on, and went outdoors, on the front end of the caboose, where he remained until the train reached Mitchell. He testifies that he made an observation of the train by looking round the north side of the passenger coach, which was in front of the caboose, for perhaps a minute, and says: "In my opinion the train was running in one section." When the whistle blew for the station, he was on the front end of the caboose, looking out on the south side of the train for the milepost, and he remained standing there until the accident, which he thinks occurred two or three minutes later. When the crash came, he heard glass falling, and went into the caboose and saw the conductor come down out of the cupola, went with him into the coach, and then got off the coach, and went to the depot after a doctor. The evidence does not disclose the movements of the front brakeman until the train reached the whistling post, at which point he testifies he was on the tender, just behind the engine, from which place he made an observation of the train, and saw the red and green lights on the caboose. He then climbed down on the south side of the train and over on to the engine, and was on the engine steps when the collision occurred. A moment later he got off the engine, turned two switches, and then rode on the engine steps to the station. At the time he observed the train, it appeared to be running in one section, but he says: "I am not positive as to whether it was broken in two sections or not." The engineer and fireman who were witnesses supposed that the train was running in one section. In fact, the caboose, passenger coach and coal car in front of it, had broken loose from the train some time after leaving Loomis, but at what point does not appear, except that one witness Parshall, who was in the coach, testifies that, "as the train came round the curve, there seemed to be quite a separation between the coach and the cars in front." At this time the train was running about 25 to 30 miles an hour, and appears to have left the three cars some distance behind. On approaching the switch, the engineer applied the air and slackened the speed of the front section of the train to three or four miles an hour, and the collision occurred when the three cars which had broken loose followed on a down-grade, and struck the rear end of the train. The shock was such as to seriously injure the conductor, who was in the cupola of the caboose, and throw the plaintiff against the seat in front in such manner as to severely injure his side.

On the trial his counsel asked plaintiff: "You may state whether or not you have recovered from the effect of the accident. (Objected to as leading and suggestive.) He can state the facts, his present condition, and how long that condition has existed. Then it is for the jury to say whether he has recovered or not. (Objection overruled. Defendant excepts.) A. No, sir; I have not. I am still suffering from that pain in the head. Constant pressure there." This witness was also asked the following question: "Now, you may state whether or not this injury to your head has any effect on your doing business at this time? (Objected to as *** leading and suggestive and calling for the conclusion of the witness. Objection overruled. Defendant excepts.) A. It has. Q. Now, you may state what that is. A. Well, when I get in any position that requires a good deal of thought and care, it increases that pain. Q. And you may state whether or not you are able to carry on business on that account. (Objected to as calling for the conclusion of the witness. Let him state all the facts and what he does, and the jury is to say as to what is his physical condition. Objection overruled. Defendant excepts.) A. No, sir; I am not. Q. Now, tell the jury exactly what effect this injury to your head has. (Objected to as not proper redirect examination. Objection overruled. Defendant excepts.) A. As I said before, when I get at any work or business, where I get tired, I have to stop on account of this pain in my head." It is contended by appellant that plaintiff should have detailed to the jury the facts in reference to his physical condition, and left the jury to determine whether he had recovered from the effect of the injury received. It is sufficient to say that plaintiff, on direct examination, had already detailed all the facts pertaining to his then physical condition. And even were the ruling technically wrong, which we do not hold, we are unable to see, in view of the witness' answers. that defendant could have been prejudiced thereby, and therefore such ruling would not constitute reversible error.

One Parshall, who at the time of the accident was a passenger in the coach, and was called as plaintiff's witness, on direct examination was asked: "Did you notice anything peculiar when the train came around the curve there?" Objected to as incompetent, irrelevant, and calling for a conclusion of the witness and no positive independent fact which objection was overruled, and the ruling is assigned as error. The witness answered: "Yes; I did. I noticed there seemed to be quite a separation between the coach and the cars that were in front. That is, I would not be positive that there was no car in front of the coach, but it seems when we came around the corner there seemed to be quite a separation, and I wondered why it was. That is, between the coach and the box car there. And, sitting there in the car looking, I could see that." While the form of this question is improper and a ruling sustaining the objection would not be reversed, the answer to the question contains nothing but a statement of the conditions observed by the witness, and the ruling cannot be deemed prejudicial. Defendant's witnesses, Slater and Terry, were the engineer and fireman at the time of the accident. Defendant's counsel asked them the following questions: "Q. State whether or not in the movement of this train you conducted its movements after this milepost here in any different or unusual manner than you conducted...