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

• Court: Iowa Supreme Court
• Writing for the Court: PRESTON, J.
• Citation: Scott v. Chicago, Rock Island & Pacific Railway Co., 141 N.W. 1065, 160 Iowa 306 (Iowa 1913)
• Decision Date: 05 June 1913
• Parties: JAMES SCOTT, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

141 N.W. 1065

160 Iowa 306

JAMES SCOTT, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

June 5, 1913

Appeal from Guthrie District Court.--HON. J. H. APPELGATE, Judge.

THIS was an action to recover damages for personal injury. There was a verdict and judgment for plaintiff. Defendant appeals.

Reversed.

Foster & Foster, J. L. Parrish and Robert J. Bannister, for appellant.

J. D Brown, Wade, Dutcher & Davis and M. J. Halligan, for appellee.

OPINION

PRESTON, J.

The plaintiff, prior to his injury, was a healthy man, aged twenty-eight years. He entered the railway service in 1907 working first in the roundhouse, and then as fireman on a switch engine, in all about one year. In April, 1910, he re-entered the service of defendant as fireman, first as extra fireman, and for about a month before his injury he had a regular run as fireman on a freight train. As we understand the record, plaintiff had been going over the track at the place where he was hurt at intervals for some months prior to his injury, the last time going west on October 14, 1910. Going west, the track was on an upgrade at this point. The company had been repairing the track at this point for some time prior to the injury.

The evidence tends to show that on the morning of October 16, 1910, plaintiff was thrown from the tender and seriously injured; that he is paralyzed below the waistline, and is practically helpless. The track at this point was being repaired or rebuilt, and had been skeletonized in order to permit the roadbed being ballasted, which was being done with rock. This had been partially completed; defendant claims substantially so. Plaintiff claims that he was thrown off when the train was on the curve. He says he did not know what the track was, whether skeletonized or ballasted, excepting the impression he had of it as he was lying by the track after being thrown off the tender. It was downgrade. The train was going about fifteen miles an hour, as plaintiff thinks, though the engineer thinks fifteen or twenty. Plaintiff says he knew how the tenders were loaded with coal; knew there was no railing around the top of the tank; that the only way to measure the water in the tank was to go back to the manhole and measure it by sticking something down in the water; that in leaving a curve the tank rights up and makes a roll, and knew that if he fell off the train he was likely to be injured. Plaintiff says that as the train was approaching the town of Montrose, Kan., and when about two miles west of the town, he was ordered by the engineer to go back over the coal in the tender to the manhole in the rear to measure the water; that while in the performance of this duty he was thrown from the tender to the ground.

The petition charges as negligence that the tender had no appliance for measuring the water without going back over the coal while the engine was in operation; that no water gauge or other appliance was provided by which the amount of water could be determined without going over the coal to measure it; that there were no guard rails or other appliances along the sides of the tender; that the coal was piled high and in an uneven manner, making an unsafe place over which to pass; that plaintiff was ordered by the engineer to go upon said tender while the train was running at a high and dangerous rate of speed, over a rough and uneven track; that the roadbed and track at the point in question were out of repair.

Defendant answered by general denial, and further alleged that the plaintiff was an experienced fireman in the service of defendant, and had knowledge of the construction and equipment of its engines and tenders, and particularly the engine and tender upon which he was riding at the time he received the injury complained of, and knew that the said tender was not equipped with any water gauge for measuring water in the tender, and knew that there was no guard rail on the sides of the tender, and that plaintiff had knowledge of the manner in which the coal was loaded and piled on said tender, at and prior to the time he was injured, and had knowledge of the construction and condition of the track over which he was riding; that plaintiff remained in his employment without complaint, with knowledge of all these conditions, and assumed whatever risk there was to him arising from them.

The grounds of negligence submitted to the jury by the trial court were as follows:

The acts of negligence charged by plaintiff against the defendant, and which are submitted to you, are: That the engineer in charge of the engine on which plaintiff was at the time employed ordered plaintiff to measure the water in the tender attached to said engine, and that the negligence of the defendant consisted (1) in ordering plaintiff to go back upon the tender piled high with coal and without handholds, or other supports, when the train was running at a high rate of speed, over a rough track and around a curve; (2) in running said train at a high and dangerous rate of speed over a rough and uneven track, and upon a curve, while the plaintiff was in the performance of his duty measuring the water when the tender was loaded with coal, piled high, and without handholds, guards or other supports; (3) in failing to maintain the track in a reasonably safe and even condition for the use of plaintiff at said curve in performing his duty of measuring said water upon said tender, loaded high with coal, and without guards, handholds, or other supports.

The action was brought under the Federal Employers' Liability Act; the petition alleged and the evidence tended to show that this train was engaged in commerce between states. There was a sharp conflict in the evidence as to some of the matters in issue, so that it was a case for the jury. This is admitted by appellant in argument.

There are three points relied upon by appellant for a reversal: First, that the court erred in admitting in evidence the life tables over defendant's objection; second, that the instructions as to the life tables and the measure of damages are erroneous; and, third, that the jury were not properly instructed in regard to assumption of risk.

Appellee contends that the instructions cannot be considered by this court, for the reason that the attention of the trial court was not called to the alleged errors therein, in a motion for new trial. There was no motion for a new trial, but the instructions were properly excepted to.

I. It is perhaps not necessary to a determination of this appeal to decide this point, but it has been argued and will be noticed. It is admitted by appellee that a motion for a new trial is not essential to an appeal, but it is said that under the statutes of this state a question as to the form of instructions submitted by the court must first be presented to the lower court before it can be reviewed upon appeal; that this applies to instructions given; that it is not a question of refusal of the court to give an instruction asked. We think this question has heretofore been determined, and we feel safe in saying that it has been the understanding of the profession and of the courts in this state for many years that any matter passed upon by the court during the trial, properly excepted to, may be reviewed by this court, without a motion for a new trial. If this is not so, then every matter complained of as error and excepted to must be included in the motion for new trial. The trial court could grant a new trial for error in ruling on objections to evidence, if presented in a motion for new trial, but a motion is not necessary for that purpose. In such a case the matter would have been presented to the court and passed upon when the objection was made. When an instruction is asked and refused the matter is presented to the court and passed upon. So it is when the court gives its own instructions; they are considered, determined, and passed upon by the court in writing them, and in reading them to the jury. The giving of an erroneous statement of the law to the jury is in itself an affirmative error.

Section 3707 of the Code, in the chapter relating to trial and judgment, provides: "All instructions requested or given shall be filed by the clerk and be a part of the record, and if the giving or refusal of an instruction is excepted to, it may be noted by the short-hand reporter, and no reason for such exception need be given." In the same chapter, section 3709 provides for exceptions after verdict as follows: "Either party may take and file exceptions to the charge or instructions given, or to the refusal to give any instructions asked, within three days after the verdict, which shall be a part of the record, and may include the same, in a motion for a new trial, but in either case the exception shall specify the part of the charge or instruction objected to and the ground of the objection." It would seem from this that if the instructions given were excepted to at the time, nothing further need be done; but if not excepted to at the time, then they may be excepted to afterwards and within three days after verdict, or by motion for new trial.

Section 4105 of the Code, which is found in the Revision of 1860 provides: "A judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court, until such motion has been there made and overruled." It has been held that the purpose of this statute was to prevent the expense and delay of appeal where the error relied upon is a mere irregularity, mistake, or omission on the part of some ministerial officer, or the court itself, which could readily be corrected in the trial court on motion. Pigman v. Denney, 12 Iowa 396; ...