Whitsett v. Chi., R. I. & P. Ry. Co.

• Decision Date: 20 October 1885
• Parties: WHITSETT v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

67 Iowa 150

25 N.W. 104

WHITSETT

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Filed October 20, 1885.

Appeal from Mahaska district court.

Action for the recovery of damages for a personal injury sustained by plaintiff while in defendant's employ as a brakeman on one of its trains, in consequence, as is alleged, of the negligence of the engineer in charge of the engine which was hauling said train. There was a verdict and judgment for plaintiff. Defendant appeals.M. A. Low, for appellant, Chicago, R. I. & P. Ry. Co.

Bolton & McCoy, for appellee, W. H. Whitsett.

REED, J.

Plaintiff was employed as head brakeman on a freight train. He had been in defendant's service about 10 days at the time he received the injuries complained of, but had some experience as brakeman on another road before entering defendant's employment. At the time of the accident he was making his first trip with the engineer who was in charge of the engine. The accident happened as the train was approaching a station at which it was to be side-tracked to permit a passenger train which was following to pass on the main track. It is the duty of the head brakeman, when the train is approaching a station at which it is to be side-tracked, to reduce its speed by applying the brakes, and when it has reached the proper distance from the switch to get down from it while it is still in motion and go forward and so adjust the switch as to permit the train to pass on to the side track. Plaintiff was in the performance of this duty at the time of the accident. He applied the brakes and reduced the speed of the train. He then started forward to the engine, in order, as he claims, to be in a convenient position from which to get down from the train when it should arrive within the proper distance of the switch. The car immediately in rear of the tender was an ordinary box car, its top being somewhat higher than the top of the tender, and when plaintiff was in the act of getting from the car to the tender, or immediately after he stepped upon the tender, he fell to the ground and sustained the injuries of which he complains. His claim is that he was performing the duty required of him in the manner in which it is ordinarily performed, and that the engineer knew that he would descend to the tender from said box car after he had applied the brakes, and that he knew he was in the act of getting down from the car to the tender, and with that knowledge he negligently turned on steam without giving him any warning that he was about to do so, and that the turning on of the steam caused a sudden increase in motion of the engine, and that he was thrown from the train by the jerking caused by this movement.

1. There was a tool-chest on the tender which extended across the rear end and occupied the greater portion of it. There was a space, however, of from eight inches to one foot in width between the ends of the chest and the sides of the tender, and there was evidence tending to prove that plaintiff jumped or slipped from the top of the box car into one of these spaces. One question which arose in the case was whether there was any necessity for plaintiff to go forward to the engine before getting down from the train, and whether he might not have left it with greater safety to himself by descending a ladder at the end of the box car and stepping from that point to the ground. Another question was whether he exercised all reasonable care for his safety in passing from the box car to the tender. He was examined as a witness in his own behalf, and, against defendant's objection, was permitted to testify that brakemen, when they were required to go ahead to open switches, usually went forward to the engine before getting down from the train, and that it was easier to get down from the engine than from other places in the train, for the reason that the step on the engine was a foot nearer the ground than were those on the box cars. Two other witnesses who had been employed as brakemen on other roads, but who had never worked on defendant's road, were permitted to testify to substantially the same facts. The objection urged against the admission of this testimony was that defendant would be bound by the custom only, in case it prevailed, in the operation of its own road, and it did not appear that the witnesses were competent to testify as to the custom on its road. The evidence was offered, however, not for the purpose of proving a custom which would be binding upon defendant, but to show that plaintiff was not guilty of negligence in adopting that particular course in performing the duty. In the absence of express rule or direction prescribing the particular course he should pursue under the circumstances he was required to choose between the two courses. And if, in making that choice, he adopted the course usually followed under like circumstances by men in that calling, that fact would have a very important bearing upon the question whether he exercised due care in making the choice. It was therefore not material whether the witnesses could testify to the custom on defendant's road or not. It was sufficient if they were able to testify to the course pursued under similar circumstances by men generally in that employment. Jeffrey v. Keokuk & D. M. R. Co., 56 Iowa, 546;S. C. 9 N. W. Rep. 884.

One of the witnesses was permitted to testify, however, that in going from the top of a box car in the rear of the tender to the engine he would jump down on the same place in the tender on which plaintiff testified he jumped at the time of the accident. This evidence is incompetent. It was for the jury to say, under all the circumstances of the transaction, whether plaintiff exercised due care in passing from the car to the tender. The statement of the witness was, in effect, an expression of opinion by him that what plaintiff did was the proper thing to do under the circumstances. This clearly was not competent. Jeffrey v. Keokuk & D. M. R. Co., supra. The same witness was also permitted to testify that if the motion of the engine is suddenly increased after the speed of the train has been checked with the brakes, it will cause a jerking of the train more or less violent, and that he had known coupling links and pins to be broken by that means. The objection urged against the admission of this testimony was that it was irrelevant and incompetent. The witness was a brakeman, but had never been employed on defendant's road. He gave an opinion based upon facts which had come under his own observation as to the effect which the sudden increase of the motion of the engine would have under given circumstances upon the balance of the train. We think the opinions of witnesses competent to form correct opinions on the subject are admissible to prove that fact; and we think, also, that the witness was shown to be competent to give an opinion. A question in the case was whether plaintiff was thrown from the train by a sudden jerk caused by an increased motion of the engine. There was other evidence tending to prove that steam was turned into the engine and that its motion was increased. The evidence objected to tended to prove that if that was done it would have a tendency to cause the result which plaintiff claims was produced by it. It was therefore relevant to the issue.

2. Defendant examined as a witness the engineer who was in charge of the engine at the time of the accident, and complaint is made of the action of the court in requiring him to answer certain questions asked him by plaintiff's counsel on cross-examination. Without setting out the questions objected to, we deem it sufficient to say that they in no manner related to the subjects upon which the witness was examined in chief. They were not asked for the purpose of testing the truth of any of his statements in chief, or with the view of eliciting further information than had been given in his examination in chief on subjects upon which he was examined; but were calculated and intended, no doubt, to elicit evidence of an independent fact which plaintiff's counsel deemed material to his case. The objection that the questions were not allowable on cross-examination should have been sustained.

3. The court gave the following instructions to the jury, the giving of which was assigned as error: “If you find from the evidence that the injury was caused by the engineer putting on more steam, and thereby causing a jerk of the car on which plaintiff was then standing or being, and you further so find that he put on no more steam than was usual and necessary for the proper movement of the train, and under the circumstances disclosed by the evidence, this...