The Chicago, St. Louis and Pittsburgh Railroad Company v. Champion

• Decision Date: 10 January 1894
• Docket Number: 985
• Citation: 36 N.E. 221,9 Ind.App. 510
• Parties: THE CHICAGO, ST. LOUIS AND PITTSBURGH RAILROAD COMPANY v. CHAMPION
• Court: Indiana Appellate Court

36 N.E. 221

9 Ind.App. 510

THE CHICAGO, ST. LOUIS AND PITTSBURGH RAILROAD COMPANY v. CHAMPION

No. 985

Court of Appeals of Indiana

January 10, 1894

Reported at: 9 Ind.App. 510 at 526.

From the Marion Superior Court.

Judgment affirmed.

S. O Pickens and C. W. Moores, for appellant.

G. W Cooper, J. E. McCullough and L. P. Harlan, for appellee.

DAVIS, C. J. REINHARD, J.,.

OPINION

DAVIS, C. J.

Appellee, in the court below, recovered damages in the sum of two thousand, two hundred and fifty dollars on account of personal injuries.

The case in brief, in behalf of appellee, may be stated as follows:

He was in the employ of appellant as a switchman, or yard brakeman, in its yards near the city of Indianapolis,--it being a part of his duty to couple cars. One Leonard was also in the employ of appellant as a brakeman. Leonard was inexperienced, incompetent, and negligent, of which facts appellant had knowledge at the time it took him into, and during all the time it retained him in, its service, but the appellee had no knowledge thereof, never having worked with Leonard before the time of the injury. In railroad language, a heavily loaded car had been "kicked" by the locomotive (put in motion by a push from the locomotive and caused to go under the influence of the momentum thus acquired) down the side track, to be coupled to another car standing thereon. The side track was down grade six inches in one hundred feet. Leonard was riding the car thus "kicked," and the brakes thereon were set. As it approached the standing car, which was loaded with lumber projecting over the end, the appellee went between the cars, and under the lumber, to enter the link and make the coupling. Through his negligence--his lack of experience and competency--Leonard suddenly released the brakes on the moving car, and thereby caused the same to quickly spring forward catching appellee's hand between the drawbars, without any fault or negligence on his part.

On this theory of the case counsel for appellant earnestly contends that there are several prejudicial errors disclosed by the record.

The first question we will consider brings in review the action of the trial court in refusing to allow appellant to prove on the trial the result of a certain test or experiment made by appellant. The purpose in proving such test was, if such proof had been permitted, to show that if said Leonard was inexperienced, incompetent, and negligent, in manner and form as charged in the complaint, such act of negligence on his part could not have been the proximate cause of appellee's injury. It is insisted that the evidence so offered was worth something at least, as tending to prove that the injury could not have been, in the nature of things, the result of such alleged act of negligence on the part of Leonard.

The offer referred to was made in the manner following, that is to say, the witness, Henry Smith, testified that he had been in the service of appellant as switchman in the yards for three months, and that about one month before the trial, he was present when a test was made with reference to letting down a car,--on the track where the accident in question occurred more than one year prior to that time,--and having it coupled to another car.

The witness was then asked this question: "What kind of a car was used in letting it down on the siding?"

Objection was made by counsel for appellee, and counsel for appellant then said:

"May it please the court, we propose to show by this witness that about one month ago, three weeks or a month ago, a test was made on siding No. 2, the siding on which this accident took place, at about the same place at which it took place, to wit, about three or four car lengths west of the connection of that siding with the other track, at that point, by letting a P. R. R. gondola car of the same kind as the one that was being let down at the time when this plaintiff received his injury, and having it coupled on to a stationary car standing on the track at about the same place the car was standing when he undertook to make the coupling and was injured; that on this P. R. R. car, on the occasion of the test, was Mr. Leonard, the same brakeman who was on the car at the time of the accident, and that the car was running at a speed of about three miles an hour with the brakes set on it; and that when within about eight or ten or twelve inches of the car on which it was to be coupled, the brake was let off by Mr. Leonard, the brakeman, and that upon the letting off of that brake it did not show an increase of the speed of the car; and, in addition to that, we propose to show that it was on a cold day, and that, the car was kicked back by an engine from about the place where the car was kicked on the occasion when the accident occurred."

No other question was asked the witness. The offer, we presume, was so made in response to the question hereinbefore set out.

The court sustained the objection of counsel for appellee, and excluded the testimony so offered, to which ruling appellant objected.

It is urged by the learned counsel for appellant, that under the circumstances disclosed in this case the authorities sustain the proposition that when experiments are shown to have been made under essentially the same conditions, the courts will hold that evidence of the result of such experiments is admissible. Lake Erie, etc., R. R. Co. v. Mugg, Admr., 132 Ind. 168, 31 N.E. 564; Eidt v. Cutter, 127 Mass. 522; Commonwealth v. Piper, 120 Mass. 185; Lincoln v. Taunton, etc., Mfg. Co., 91 Mass. 181; Sullivan v. Commonwealth, 93 Pa. 284; Smith v. State, 2 Ohio St. 511; Chicago, etc., R. R. Co. v. Spilker, 134 Ind. 380, 33 N.E. 280.

See, also, as bearing on the question: Medsker v. Pogue, 1 Ind.App. 197, 27 N.E. 432; Cleveland, etc., R. W. Co. v. Wynant, 114 Ind. 525, 17 N.E. 118; Ramsey v. Rushville, etc., Gravel Road Co., 81 Ind. 394; Best Prin. Ev., sections 251, 252, 506, 507, 644; 1 Greenleaf Ev. (15th ed.), sections 52, 53, 488; 7 Am. and Eng. Encyc. of Law, p. 58; Hawks v. Inhabitants Charlemont, 110 Mass. 110; Clark v. Willett, 35 Cal. 534.

The appellant did introduce evidence of expert witnesses, as it had the right to do, tending to show that the velocity or speed of a car would not be suddenly and materially increased (that is to say, that a car would not spring or jump forward), upon the release of the brake, as it was claimed by and in behalf of appellee to have done on the occasion in question.

But, so far as the offer under consideration is concerned, the difficulty is, if the law was conceded to be as contended for by counsel for appellant,--and as to this question we express no opinion,--that neither the evidence nor the statement accompanying the offer, in the case in hand, shows that the essential conditions at the experiment were the same as those at the injury. There was neither evidence nor statement that the track or car was in essentially the same condition, or whether the brake was tightly or loosely set, or whether the car was kicked hard or easy. If it appeared that the track and car were, on the two occasions, substantially the same; that the brake was set in the same manner; that the car was kicked with the same force; and that in all other respects the conditions were essentially the same, and the offer to prove the result of such experiment was made in response to a proper and pertinent question, this court would be required to enter upon the consideration of, and to decide, the interesting and important question so ably discussed by learned counsel for the respective parties, both in oral argument and in the exhaustive briefs filed in the case; but without further discussion it will suffice to say that if the offer was in other respects properly made, there was no error in the ruling of the trial court in excluding the evidence, because of the failure to show, or offer to show, that the test or experiment was made under substantially the same conditions as existed at the time the injury occurred.

On the question as to what is necessary in order to present in this court for review the ruling of the trial court in excluding offered evidence, see Toledo, etc., R. R. Co. v. Jackson, 5 Ind.App. 547, 32 N.E. 793 (554); Kern v. Bridwell, 119 Ind. 226, 21 N.E. 664; Gipe v. Cummins, 116 Ind. 511, 19 N.E. 466.

"It has long been the settled rule in this State that the exclusion of testimony can only be made available by asking a pertinent question of a witness on the stand and, if objection is made, stating to the court what the witness will testify to in answer to said question, and if the court sustains the objection, reserving an exception." Toledo, etc., R. R. Co. v. Jackson, supra.

It is next insisted that the court erred in refusing to give two instructions asked by appellant. In this connection we will briefly refer to the instructions given. The court fully and explicitly instructed the jury that in order to entitle appellee to recover, it was incumbent on him to prove, by a preponderance of the evidence, that he was in appellant's employ; that while acting in the scope of his employment, and without fault on his part, he was injured by reason of the negligence of Leonard, a coemploye; that Leonard was inexperienced and incompetent; that appellant employed and retained said Leonard with full knowledge of his inexperience and incompetency; that appellee did not know, and could not, by the exercise of ordinary care on his part, have discovered Leonard's incompetency prior to the time he was injured.

We quote the following from the instructions: "As a general rule, when a person enters into the employ of a railroad company, he is held to assume all the risks incident to the kind of service...