Spaulding v. Chi., St. P. & K. C. Ry. Co.

• Decision Date: 14 May 1896
• Citation: 67 N.W. 227,98 Iowa 205
• Parties: SPAULDING v. CHICAGO, ST. P. & K. C. RY. CO.
• Court: Iowa Supreme Court

98 Iowa 205

67 N.W. 227

SPAULDING

v.CHICAGO, ST. P. & K. C. RY. CO.

Supreme Court of Iowa.

May 14, 1896.

Appeal from district court, Howard county; W. A. Hoyt, Judge.

Action at law by the administrator of the estate of Charles Hanley, deceased, to recover damages resulting from the death of Hanley, which is alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.Lyon & Lenehan and H. T. Reed, for appellant.

Butts & Jacques, H. L. Spaulding, and John McCook, for appellee.

ROBINSON, J.

On the night of the 4th day of May, 1892, the decedent was in the service of the defendant, and, while engaged in the line of his employment, received injuries which caused his death. The facts relating to the accident which are admitted or are clearly established by the evidence are substantially as follows: At the time in question, the decedent was the head brakeman on a freight train of the defendant. His run was on the division of its road which extended from Elma, in this state, to St. Paul, in Minnesota. On the 3d day of May, he went with his train from St. Paul to Elma. It was his duty to go on with a train from Chicago which was scheduled to leave Elma for St. Paul between 5 and 6 o'clock in the afternoon of the next day. It contained about 23 cars. When it arrived, it was the duty of the crew to which Hanley belonged to take charge of it, change the engines and caboose, and do some switching. In the railway yard at Elma there were numerous tracks, among which were the passing track and the lead track. These tracks came together in the northerly portion of the yard, but further south were separated from each other by a considerable distance, and between them were at least four side tracks, which were connected with the lead track by means of switches, and which were numbered from east to west. When the train arrived, it was placed on side track No. 4, the fresh engine was backed from the roundhouse to the train, and coupled to it, and then it was drawn onto the lead track, until the rear of the train was north of switch No. 2. The train was then backed onto the side track No. 2, on which the caboose to be taken out stood, for the purpose of coupling to the caboose, and also for the purpose of cutting out the fourth, fifth, and sixth cars from the engine, and placing them on another track. When the engine commenced backing the train onto side track No. 2, Hanley was in his proper place on the forward part of the train, and it was his duty to uncouple the sixth car from the seventh when the train had been backed a sufficient distance onto the side track. When that should be done, the first six cars were to be drawn onto the lead track, the cars to be cut off were to be set out on the track where they were to be left, and the first three cars and the engine were then to be coupled to the remainder of the train on side track No. 2. The night was so dark that Hanley could not be seen by the other trainmen when the train was backed onto side track No. 2, and his position and movements were known only by observing the lighted lantern which he carried. When that approached switch No. 2, it disappeared from the top of the car on which he had been standing, going over the east side, as though he were descending to make the uncoupling. Nothing was seen of him or his lantern from that time until the engine had reached the frog between the first and second side tracks, when the engineer heard some one crying out, and, looking down, saw Hanley on the ground. The engine was stopped, and he was found lying on his left side, his face towards the south. His right foot had been caught in the frog, and cut off, and his left foot was badly injured. The frog was unblocked, and the foot which had been cut off was wedged in between the rails, and pointed south. Hanley received attention at once, but died from the effects of his injuries within a short time. It does not appear that he gave any explanation of the accident, excepting a brief statement made immediately after it occurred, while he was on the ground; and what he then said is a matter of controversy. Employés of the defendant had been working about the frog on the day of the accident, and there is evidence which tends to show that they left it and the track near it in an unsafe condition. The plaintiff charges that the defendant was negligent in failing to block or otherwise protect the frog, and in failing to fill up and surface the track between the ties in the vicinity of the frog, and that the accident was caused by such negligence. It is the theory of the plaintiff that Hanley descended from a car while the train was being backed onto switch No. 2, for the purpose of making an uncoupling between the sixth and seventh cars, preparatory to setting out the three cars which were to be left on another track; that he went between the cars for that purpose, while the train was in motion; and that, in moving with the train while between the cars, his foot was caught in the frog, and the injuries described were inflicted. The defendant denies all wrong on its part, and claims that the accident resulted from the fault of Hanley in being intoxicated, and unfit to perform his duties, when the accident occurred, in violating rules of the company which he was under obligations to obey, and in attempting to make the uncoupling in a negligent manner. Two trials were had in the district court. On the first trial, a verdict for $3,500 was returned in favor of the plaintiff. That was set aside on application of the defendant, and the second trial had, which resulted in a verdict and judgment for the plaintiff in the sum of $5,000.

1. The witnesses who had personal knowledge of the movements of Hanley and of the train, at the time of the accident, and who found him after it occurred, were employés of the defendant. Their testimony was essential to enable the plaintiff to establish a case, and they were placed upon the witness stand by him. Their testimony was not satisfactory to him, and he was permitted by the district court to refresh their recollections by reading somewhat freely from a transcript of their evidence given on the first trial. In what was thus done, we do not find any error. Although it is a general rule that a party may not impeach his own witness by introducing evidence to show that he is unworthy of belief, yet a party surprised by the testimony of a witness may call his attention to conflicting statements made at another time, not for the purpose of laying the foundation for impeachment, but to test and quicken his recollection, and give him an opportunity to correct his testimony, and to show that it has surprised the party who called him. Hall v. Railway Co., 84 Iowa, 313, 51 N. W. 150, and authorities therein cited. See, also, Smith v. Utesch, 85 Iowa, 386, 52 N. W. 343;State v. Cummins, 76 Iowa, 135, 40 N. W. 124. The witnesses in question did not testify on the second trial in all respects as they did on the first, and the variance was usually in the interest of the defendant. It seemed that they were inclined to aid the defendant, and they were to some extent hostile to the plaintiff. Under those circumstances, it was proper to call their attention to the testimony they had given on the first trial; and, although the district court was somewhat liberal in admitting their former testimony, we do not think any abuse of its discretion in that respect is shown.

2. The plaintiff was permitted to show the kind of couplings used on the train with which Hanley was working. No complaint of the couplings was made, but it was proper to explain what they were, and how they were operated, in order to show what Hanley was required to do to make the uncoupling in question.

3. One of the witnesses for the plaintiff, who was in the employment of the defendant, was Boysen. After his cross-examination was ended, the plaintiff was permitted to question him in regard to conversations had between him and the attorneys for the defendant at the former trial, and the information he had given them with respect to his knowledge of the case. In view of the relation of the witness to the defendant, and his testimony on the two trials, we do not think the court erred in permitting the redirect examination. It enabled the jury to estimate more accurately the value of the testimony given by the witness. And this is true of the cross-examination of the witness Farrell.

4. The train with which Hanley was working was moving at the rate of from four to six miles an hour when the accident occurred. Testimony was introduced on the part of the plaintiff to show that it was the custom of the employés of the defendant to uncouple cars while they were in motion; that it was as safe to do so as to uncouple them when not in motion; that the decedent attempted to make an uncoupling in question in the manner usually adopted on the defendant's road; and that the officers of the defendant who had supervision and control of such matters knew of that method of doing such work, but made no objection to it, although it was in violation of printed rules which the defendant had adopted and given to its employés (including the decedent) for their guidance. We are of the opinion that the testimony thus given was relevant and competent. A railway company cannot escape liability by showing a violation of rules which are never enforced, and which are habitually disregarded, with the knowledge and apparent acquiescence of officers whose duty it is to enforce them. Lowe v. Railway Co., 89 Iowa, 425, 56 N. W. 519;Strong v. Railway Co. (Iowa) 62 N. W. 800. The evidence in question tended to show that the rules upon which the defendant relies were habitually disregarded by its employés, and that the officers who were charged with the duty of enforcing them knew that the employés of the...