Snakenberg v. Minneapolis & St. Louis Ry. Co.
| Decision Date | 23 June 1922 |
| Docket Number | 33998 |
| Parties | F. D. SNAKENBERG, Administrator, Appellant, v. MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 23, 1922.
Appeal from Keokuk District Court.--H. F. WAGNER, Judge.
ACTION to recover damages for the death of Owen Smithart, alleged to have been caused by the negligence of the defendant in the operation of one of its trains, which struck and killed Smithart at a crossing a short distance northeast of the town of Martinsburg, Iowa. The jury returned a verdict for defendant. From judgment rendered on the verdict, plaintiff appeals.
Affirmed.
C. C Orvis, F. M. Beatty, and Talley & Snakenberg, for appellant.
Burrell & Devitt and Stockman & Baker, for appellee.
I.
On the night of August 14, 1914, the plaintiff's intestate, with one Joe Borough and one N. L. Northup, was driving northward on the main north and south highway, a quarter of a mile east of the town of Martinsburg. This highway crosses the tracks of the Burlington Railroad, and also the tracks of the defendant company, about a quarter of a mile east of the defendant's depot at Martinsburg. The three men were riding in a single buggy, the plaintiff's intestate driving the horse, while sitting in the middle, on the knees of the other two. Northup was on the right side of the buggy, and Borough on the left. It was about 10:15 at night. The occupants of the buggy had been at a skating rink in Martinsburg, and in the evening had been drinking some. The tracks of the Burlington Railroad where they were crossed by these men were south of the tracks of the defendant company about 150 yards, and at the time in question, there were a field of corn and a hedge on the east side of the highway, between the Burlington tracks and the tracks of the defendant, so high that the view of the defendant's tracks to the east was obstructed until the traveler reached the south line of the defendant's right of way, or about 20 feet south of the south rail of the defendant's main track. To the north of the defendant's main track about 11 feet was a switch track or passing track of the defendant's.
At the time in question, one of the defendant's freight trains occupied the passing track, and the same was or had been cut for the crossing: that is, the train was uncoupled, so as to leave an opening for vehicles and persons to pass on the highway. Part of this freight train was west of the highway, and the engine, tender, and two freight cars were east of the highway, the engine being just far enough away from the main line at the switch to allow a train on the main line to pass in safety.
The plaintiff's intestate and his two companions stopped about 150 feet south of defendant's main line, but for what purpose it is not clearly shown; and when they were about 20 feet south of the tracks, they stopped again, this time for the purpose of determining among themselves whether they should proceed farther, under the circumstances. Some question appears in the record as to why they discussed the advisability of trying to go across the tracks at the crossing. The testimony of Northup and Borough on the trial was that they did not see the train that struck Smithart until an instant before the collision, and that, when they stopped close to the track, they discussed the question as to whether they could get across the switch track before the freight train closed up. Statements made and signed by Northup shortly after the accident were to the effect that, at the time they stopped, they could see the passenger train, and that they then discussed the question as to whether they could get between the main track and the switch track before the passenger train got there. It appears sufficiently, however, that they did stop, and that they did apprehend some danger at that point, Northup being of the opinion that they could go across the tracks in safety.
The testimony as to whether the train that killed Smithart could have been seen by him at the time he stopped the vehicle about 20 feet south of the track is somewhat conflicting. The fact is established, however, that, when Northup saw that the passenger train would hit the vehicle, he had time to jump out of the buggy; for he did jump out of it, and alighted on the south side of the track. Immediately after Northup jumped from the buggy, the passenger train struck the vehicle, and the death of the plaintiff's intestate resulted from the collision.
There was further conflict in the testimony as to whether the view of the on-coming train was obscured by smoke and steam from the freight engine, the curve in the track, a certain telegraph pole and brace post, and a crossing sign, and as to whether any member of the freight train crew was at the crossing to signal users of the highway at the time the freight train closed up. As to the matters in conflict in the testimony, we can only say that they were passed upon by a jury adversely to the plaintiff. We must, therefore, concern ourselves only with the question as to whether there were errors of law on the part of the trial court in their presentation to the jury.
There are twenty-three assignments of error relied upon for reversal. The first three relate to the admission of certain testimony; the next two have reference to the striking of an amendment to the motion for new trial and the overruling of this motion; the sixth complains of the entry of judgment on the verdict; and the remainder all relate to the giving of, the failure to give, and the refusal to give certain instructions.
II. The case of Borough v. Minneapolis & St. L. R. Co., 184 Iowa 210, 167 N.W. 177, is a case involving the same facts as this case, and the parties hereto stipulated that the testimony of any witness or witnesses who testified in the Borough case might be introduced by either party, the same to be subject to all legal objections, except that no objection was to be made on the ground that the witness was not personally present, and this testimony was to be received the same as though the witness or witnesses were personally present and gave their testimony. When the testimony of one Cashatt was read in part by the plaintiff on the trial, the court permitted the defendant to read on cross-examination that portion of the testimony of this witness which had been omitted by the plaintiff. The plaintiff, appellant, assigns this as error, the specific complaint being that the court was in error in permitting the portion omitted by appellant to be read on cross-examination, instead of requiring the defendant to withhold the reading until its testimony was introduced, then reading it as a part of the defendant's testimony. We are unable to see that any prejudice could have resulted from this ruling. If the portion of the testimony read by the defendant was admissible, as appellant seems to concede, and the only error complained of was the order of its introduction, the ruling would not constitute reversible error. The order of the introduction of testimony, where no prejudice is shown, is within the discretion of the trial court. See Pearson v. South, 61 Iowa 232, 16 N.W. 99, and numerous other cases upholding the general rule.
III. The testimony of one Lister, who made observations as to the visibility of a train approaching the place of the accident as the passenger train did at the time in question, was objected to on the ground that the observations were made some five years after the time of the accident, a time too remote to render the testimony material and competent, and on the ground that the surroundings at the crossing were not shown to be the same as they were when the accident occurred. It is practically impossible in all such cases to reproduce in every minute detail the scene as it was at the time in question. The law does not require that the surrounding objects be precisely the same as at the time of the transaction, but if there is a substantial similarity between them at the time of the observations and at the time in question, the testimony is admissible, and the weight of it is for the jury. State v. Nowells, 135 Iowa 53, 109 N.W. 1016. In this instance, the witness testified that the tracks and the general lay of the ground at the point of the collision were the same at the time the observations were made as they had been for many years prior thereto, including the time of the accident; that the observations were made at about the same time of night as the accident; and that the light of the engine's headlight was of the same power as that of the engine that struck and killed plaintiff's intestate. These matters render the testimony admissible, and there was no error in the ruling of the court permitting it to stand.
IV. At one point in the cross-examination of the witness Joe Borough, he was asked if Smithart started to drive between the cars of the freight train at the crossing at a time when Northup said to Smithart and Borough that he did not believe they could drive through in safety, and at a time when the conditions at the crossing were the same as when they had first stopped...
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