159 Iowa 537 | Iowa | 1913
The general nature of the negligence charged was that the defendant furnished Kelleher an engine which was old and worn and in a bad state of repair. Lack of proper inspection was also charged. It was also averred that the wheels had become flattened, and that the side bar was worn and out of repair, and that such side bar received an extra strain because of the dilapidated condition of the engine in other respects; that he received serious and permanent injuries by reason of such accident, the principal one being the breaking of his knee-cap; that he was totally incapacitated from earning any money. The defenses pleaded were a general denial, contributory negligence, and assumption of risk. By way of reply the plaintiff pleaded that shortly prior to the accident he had reported to the defendant company the dilapidated condition of such engine, and that the defendant through its roundhouse foreman had promised to repair the same. The method of the accident was that the side rod broke and the revolving parts crushed the cab where Kelleher was sitting. He was seriously injured. His permanent injury consists in a broken kneecap, the parts of which have never united except by a fibrous union. The evidence was sufficient to justify a finding by the jury that he was wholly incapacitated by the injury from following his occupation as an engineer. He. is, however, by no means wholly deprived of the use of his limb, but its strength is much affected.
I. It is one of the contentions of the defendant here that theie should have been a directed verdict in its favor on the ground of assumption of risk.- The evidence on behalf of the plaintiff tended to show that the engine in question had been in use since 1882 and that it was in need of general repair.
Appellant, however, places its greatest emphasis upon Kelleher’s inspection at Albia immediately before he started upon his return trip. If upon this inspection Kelleher had discovered some new or particular defect sufficient to indicate imminent peril in the continued use of the engine, a different question would be involved.
It is also argued by appellant that there was no evidence that the roundhouse foreman at Marshalltown was the proper person to whom complaint of the condition of the engine should be made. Kelleher so testified, and his testimony is undisputed.
II. Under the instructions of the trial court, the jury were permitted to allow damages for pain and suffering past, present, and future. It is urged that this was erroneous on two grounds: (1) Because such element of damage was not covered by the assignment of the cause of action from Kelleher to the plaintiff; and (2) because no claim was made in the petition for damages on that ground.
It is not claimed that the instruction of the trial court contradicts this rule. It only lacks in specification. This question was considered by us in Greenway v. Taylor County, 144 Iowa, 332, where substantially the same language was used. In that ease we held that the instruction in itself was not erroneous, and that, in the absence of a request for more specific instruction, error could not be predicated upon its lack of specification. ¥e think that case must be deemed controlling here, although we deem it a much better practice for the trial courts to be specific in their instructions at this point. So we said in the Greenway case and in Williams v. Clark County, supra.
Q. Did you have any advise in regard to an operation on this knee? (Objected to as calling for hearsay). Q. I mean professional advice. (Same objection. Overruled, and defendant excepts). A. Yes. sir. Q. With whom? A. The company surgeon and Dr. Boucher. Q. And who was the company surgeon? A. Dr. Mighell. Q. What did Dr Mighell tell you or advise you in regard to an operation on this knee?*545 (Objected to as incompetent and calling for hearsay, being a statement not binding upon this defendant and not the best evidence and not within the issues. Overruled, and defendant excepts). A. He came down to my house, I think, along in July after I got hurt, and he says, ‘I have got orders to come down and examine your knee by the company.’ He says, ‘I believe they are going to settle with you.’ I says, ‘All right, you can examine it any time you want to.’ Well, he went to work and examined it. ‘Now,’ he says, ‘they want me to take you to the hospital and cut that open again and wire it.’ I says, ‘Doctor, will it be any better if you do that than it is now?’ He says, ‘I don’t know,’ and furthermore he says, ‘ I would not advise you to do it because the chances of infection in the knee is something very serious.’ Q. What else was said then? A. He says, ‘If it heals up or the bones would grow together the knee would be stronger. ’ I says, ‘Will you guarantee the knee will be any better than it is if you do operate on it?’ And he says: ‘No, sir; I won’t.’ Q. What, if anything, did you ask him in regard to it? (Defendant moves to strike out all the answer of the witness as incompetent, hearsay, and including statements which are not binding upon this defendant and not the best evidence. Particularly move to strike out all the statement with reference to what Mr. Kelleher said to the doctor, being hearsay and a self-serving declaration). Judge Wade: He is simply asking for advice as to what was best to do with the leg. There is some of that answer there I have no — might possibly be objected to as to the conversation between the doctor and him about the leg. I do not see how that— The Court: I cannot go through the answer and pick out the parts. The motion to strike is overruled, and defendant excepts. Q. What, if anything, did you say to him about the operation as to cutting the bone or anything of that kind? (Objected to for the same reason, including all of the objections made in the motion to strike. Overruled, and defendant excepts). A. Well-, I said to him, ‘You will have to cut a piece off of the side there to get a- fresh joint to wire together.’ I said, ‘Will that have a tendency to shorten the leg, the cutting of it?’ He says, ‘It will.’ (Defendant moves to strike out the answer for the reasons stated in the motion to strike the previous answer. Overruled, and defendant excepts). Q. You haven’t had any such operation on your*546 leg? A. No, sir. Q. Did you have the advice, you say, of another doctor on the subject? A. Yes, sir. Q. State whether or not he advised an operation or not to operate? (Objected to as incompetent and not the best evidence, calling for hearsay and a conclusion and opinion of the witness). The Court: I will let him say whether he was or was not advised without going into conversation.' (Objection overruled and defendant excepts). Q. What doctor was it? A. Dr. Boucher. Q. Is he a practicing physician and surgeon in Marshalltown here? A. Yes, sir; he is the county coroner. Q. Did he make an examination of the leg? A. Yes, sir. Q. State whether or. not he advised an operation? A. He advised me not to. (Same -objection and defendant moves to strike out the answer for all the reasons stated in the motion to strike. Overruled, and defendant excepts).
Mrs. Kelleher testified substantially to the same effect and over the same objections.
' It is urged by appellant that this testimony was hearsay and incompetent ojn many grounds and that it was highly prejudicial. The only argument urged by the appellee in support of the admission of this testimony is that it was given in explanation of the conduct of Kelleher in refusing to submit to an operation and that it was given to repel a claim of bad faith on his part in refusing to submit to such operation. Appellee has failed to point out to us that part of the record upon which this argument is based. We have read every line of the record in search of support for the argument. We are unable to find an intimation by the defendant or any of its witnesses of bad faith on the part of Kelleher. There was no such question apparent in the ease either in the pleadings or in the testimony. The plaintiff first injected it into the case in the opening statement of his counsel to the jury before the taking of evidence. This was followed by the testimony of Mr. and Mrs. Kelleher as a part of the main case. The defendant met such testimony by the testimony of Dr. Mighell wherein he denied the substantial part of such alleged conversation and denied that
The contention of appellee is that this testimony on behalf of defendant, if it had been given in the first instance, would have rendered the testimony of Kelleher and his wife admissible in rebuttal. We do not think the argument is available. Such evidence was not given on behalf of the defendant in the first instance. It was purely defensive. The evidence so introduced by the plaintiff, if erroneous, was highly prejudicial. Elzig v. Bales, 135 Iowa, 208; Christopherson v. Railway Co., 135 Iowa, 417.
Such evidence having been admitted, the defendant waived nothing by contradicting it. The evidence was calculated to arouse the hostility and to disturb the candid judgment of the jury. This of itself would not exclude it if it had any legitimate purpose or function in the case. But the record discloses no other purpose for it. We see no escape from the conclusion that the defendant is entitled to a new trial because thereof. Elzig v. Bales, supra.
It is also urged that the verdict was excessive. We deem it best not to enter upon a discussion of this question at this time in view of the necessity of a retrial upon other grounds. The verdict was large and was doubtless affected to a greater or less degree by the admission of the testimony referred to
For the error indicated, the judgment below must be Reversed.