61 Iowa 434 | Iowa | 1883
The plaintiff was in the employ of the defendant, working on what is called a construction-train, and engaged with others in loading iron rails on the train. The rails were lying alongside of the track, and while loading the same the injury was received.
I. The negligence of the defendant or its employes is thus stated in the petition:
“That as this plaintiff and the other men were carrying up the iron rails, the man at the rail pile, next the car, who was put there with an iron bar to loosen the rails and roll them back to the men so that they could get 'a hold of the rails without injury to themselves, the agent and conductor of defendant, Pat Dunn, ordered the man at the rail pile to roll the rails down. He rolled two rails down. Then said Pat Dunn
We think the ruling of the court is correct. It was competent for the plaintiff to testify as he did. The defendant on cross-examination could inquire what the physicians’ directions were, and what the plaintiff did. The mere fact that it had not been shown what the directions of the physician were, would not render the evidence offered incompetent. It is said, there was evidence tending to show that with proper care the injury would not have been permanent, and for this reason, it is said, the plaintiff should not have been permitted to testify as to his having followed some undisclosed direction. No such evidence had been introduced at the time the ruling was made, and the court could not anticipate what evidence would be introduced. No motion
Conceding the question to be objectionable oil the ground stated, this will not justify a reversal, unless the answer was responsive and prejudicial. When the witness said, “I could not say how careful he was,” he had answered the question. The residue of the answer was not responsive. He was not asked as to the care or negligence of the other men, nor was he asked to compare the care of the other men at work with that exercised by the plaintiff. The question was not so framed as to direct the response made as to the usual way of loading iron rails. If an improper question is asked, and matter elicited which is not responsive thereto, we do not think the error of the court in overruling an objection to the question will justify a reversal. The attention of the court should be called to the irresponsive matter, and the court asked to strike it out. A party should not be bound by such an answer, and it is not his duty (that is, the party asking the question), to ask that it be striken out, and, clearly, it is not the province of the court to do so on its own motion.
IY. The fifth paragraph of the charge covers nearly a page of the printed abstract. The only objection thereto is, that the court directed the jury to inquire whether the foreman, Dunn, was'“negligent in permitting the rails to be in the.position they were at the time, as claimed by plaintiffs attorney.” It is said there was no such issue, and that the negligence of the defendant was not predicated on the faulty manner in which the rails were piled. The objections urged maybe well taken, and yet the instruction be unobjectionable, for the court had no reference to the manner in which the rails were piled. The claim of the plaintiff was in substance that, under the orders of Dunn, some of the rails were removed, or the same were being removed from the pile, and it was the position in which the remainder were, or would be left after the,removal, to .which the court directed the attention of the jury in the language above quoted. There was such an issue, and thereon the plaintiff’s right to recover was based.
Y. The court instructed the jury as follows:
“9. If you find that the said agent was careless or negligent in what he did, and yet-further find that said negligence was not the cause of the injury to the plaintiff, then the plaintiff cannot recover. Or if you find that the plaintiff was guilty of negligence, then he cannot recover, but if- you find that the plaintiff may have been in some respect negligent, but that such negligence did not contribute or tend to produce the injuries he received, if any, but that said injuries were produced by the negligence of said agent as before explained to you, then he would be entitled to recover.”
The defendant objects to the last instruction only. It is said to be erroneous and misleading, because, if the plaintiff was guilty of any negligence, it necessarily contributed to his injury. But it seems to us that we cannot so say as matter of law, but that it was for the jury to say whether this was so or not. Both of the foregoing instructions must be read together, and, thus doing, it is evident the court directed the jury that the plaintiff could not recover, if he was guilty of negligence which contributed to his injury.
It has been said: “In other words, to put the same doctrine into the language made familiar to us by the adoption of the terms “proximate” and “remote,” “any ‘remote’ negligence will not protect a person who by ‘proximate’ negligence does me an injury.” Wharton on Negligence, section 324. See, also, Birge v. Gardner, 19 Conn., 507; Murphy v. Deane, 101 Mass., 455.
An instruction in substance the same as the last one above set out was held to be erroneous in the Atchison, Topelca & Santa Fe Railroad Company v. Plunket, 25 Kan., 188, on tlie ground that, if the deceased was negligent at all, such negligence was necessarily “direct and proximate.” This the court determined as matter of law. Conceding this doctrine to be sound, we cannot follow it in this case, because, as before stated, we think, under the circumstances in this case, the question whether the negligence of the plaintiff contributed to the injury was for the jury to determine. It does not appear that an instruction in substance the same as the one first above quoted was given in the Kansas case.
This instruction is said to be erroneous, because it is a direct- and unqualified instruction that some or all the witnesses were influenced by hopes and fears, and is an intimation that “railroad employes dare not tell the truth from fear of being discharged if they do.” We do not so understand it. As the plaintiff wras a witness in his own behalf, the instruc
It is urged that certain instructions asked and refused should have been given, and that the verdict is against the evidence. We cannot concur in this view. The evidence supports the verdict, and the instructions were properly refused. We deem it unnecessary to extend this opinion by stating our reasons at length.
Affirmed.