71 Iowa 717 | Iowa | 1886
One Eaught, an employe upon the defendant’s road, was, on the night of the twenty-fourth of .Tune, 1882, operating, with others, a hand car on the road, going south from Davis City, and, while so engaged, was injured by reason of an engine upon the road being run against the hand car while following it from behind. Faught’s claim for damages he has assigned to the plaintiff.
The questions presented to the jury were, a's to whether any of the persons in charge of the engine were guilty of negligence in running upon the hand car, and, if so, whether the plaintiff had shown that he was free from contributory negligence. A large number of errors are assigned. For a proper understanding of them it is necessary to set out a little more in detail the facts connected with the accident. As to some of them there is some dispute; but it is undisputed that, on the night in question, Faught was sent with his hand car from Andover, Missouri, northward, with an important message to one Sullivan, who was at Davis City, in charge, as conductor, of the train which included the engine by which .the injury was done. Faught went to
We cannot properly set out the interrogatories in full. They all have the common characteristic that they call for a
We do not say that a party may not be entitled to have a special interrogatory submitted, even where it is slieh that an answer most favorable to the party would not entitle such party to a verdict. Put we do not think that a party is necessarily entitled to a special finding upon every circumstance which might have so'me bearing upon the case. If we should hold that he is, it might become a favorite mode of trial for each party, by requiring a special finding, to seek to give prominence to every circumstance which he regarded as-more or less favorable to him.
It might seem, at first, that the sixth interrogatory called! for a material finding. That interrogatory is in these, words:- “ Did Southerland start his engine south before the expiration of ten minutes ?” This to the mat
Another interrogatory is in these words: “Did he [Faught] start said hand car in disregard of the request of the conductor, Sullivan, to not start said hand car- until the return of the engine?” The defendant claims that, if Faught did start in disregard of such request, he was guilty of contributory negligence. But we cannot say that he was, necessarily. This will appear more clearly if we set out some of the evidence upon this point. Faught testified in these words: “Sullivan, the conductor, was there,'and he said, ‘You had better not go now, as we are going to the Y to turn the engine.’ We took hold of the car, and had partly set it off" of the track, when the engineer said: ‘ You need not set it off, for we will not run' out for fifteen minutes. We have not lit up nor oiled up.’” This remark by the engineer appears to have been made after Sullivan made his request or gave his advice not to start out with the hand car, and does not appear to have been heard by Sullivan. It was a fair question for the jury as to whether Faught was guilty of contributory negligence in view of what they might have found that the'engineer said. Besides, there is no dispute as to what Sullivan said., Faught himself testified substantially as Sullivan did on that point. The defendant, therefore, has the benefit of the fact without a special finding, and is not
Some of the questions appear to us to be ambiguous. Take the twelfth: “ Did Southerland exercise ordinary care in the manner of running his engine after leaving the depot, and prior to the accident?” This question we think the jury would have been obliged to answer in the affirmative, if it excluded the matter of speed. But running thirty miles an hour is not uncommon, and is not of itself negligence. It is doubtful, then, what view the jury would have thought that it ought to take of the meaning of the question. The real question touching this matter the jury understood perfectly without any special interrogatory, and that is: Is i.t ordinary care to run thirty miles an hour, or at whatever rate the speed was, on a dark night;, behind a hand car, if jt ' is known, or should be known, that the hand car is ahead, and has had but a few minute’s start, and there are curves in the road which preclude it from being seen, even with a headlight burning, more than one hundred and twenty feet distant? We think that the court did no't err in refusing the special interrogatories.
The real objection which the defendant seems to-have to the instruction is that it did not emphasize sufficiently the perils to which Faught was exposed by calling specifically the attention of the jury to them. This is shown by an instruction which the defendant asked, and which was not given. It was in these words: “The degree of diligence required of him depends on the amount and character of the danger. As the danger in this case was very grave and destructive, he was required to exercise corresponding vigilance.” All the law contained in this instruction was given by the court. The instruction asked exceeds that given by the court, in that it contains a declaration of fact in regard to the gravity of the danger of which the jury was to judge for itself. We think that the court did not err, either in giving the instruction which it did, or in refusing that which was asked.
"VI. The court gave an instruction in these words: “The acts and omissions of the defendant’s employes, which it is claimed caused the accident and injuries complained of, are, briefly stated, as follows: That the said James Faught, at the time stated in the petition, was at Davis City, in obedience to orders from his superior, and in the performance of his duty; that, as lie was about to return to his post of duty, he asked the engineer in charge of the train how soon said train would start for Chariton, and said engineer told him
Another objection urged is that the court did not tell the jury that Eaught did not have a right to rely upon the engineer’s statement. To this we think that two answers may be made. In the first place, the court was merely setting out the plaintiff’s claim. In the second place, while it may be true that Faught had no right to rely upon the engineer’s statement in regard to the exact length of time mentioned, we think that he had a right to rely upon his not starting as soon as some of the evidence tended to show that he did.
There was evidence showing that the engineer started in-obedience to the order of the conductor, and tending to show that the conductor gave the order in ignorance of what had been said by the engineer to Faught. This, we think,
VIII. The defendant complains of an instruction upon the ground that under it the jury might have found that there was culpable negligence in starting. The objection is that the starting, without more, could not have caused the accident. But this the jury understood perfectly, and they were not misled. The case is a very simple one, and very easily understood. It was presented to the j ury by a set of intelligible instructions, and it appears to us to have been fairly tried. We have not specifically noticed every question raised, but we think that they are substantially covered by what we have said.
We think that the case was fairly tried, and that the verdict is supported by the evidence. Affirmed.