66 Iowa 52 | Iowa | 1885
I. The plaintiff was engaged as a brake man upon defendant’s road upon the run from Missouri Val
The plaintiff claimed in his petition that he received the injury by reáson of the negligence of the defendant, its agents and servants, and without any negligence on his part. The negligence complained of in the petition was — First, failure to employ an adequate number of bralcemen on the train to operate the same with safety; second, in the employment of an incompetent engineer; third, in the conductor’s ordering plaintiff to couple the cars when thrown or kicked back to other cars standing on the side track, and the failure of the conductor to ride the moving cars back to be coupled, and check their speed with the brakes, to enable plaintiff to make the coupling with safety; fourth, that the engineer threw or kicked back the cars with unusual violence.
The court, as we think, correctly charged the jury that
The plaintiff claimed in his petition, and testified as a witness, that the conductor expressly ordered him to make the coupling. He did not rely upon the fact that, aside from the order, it was his duty to couple the cars which were left upon a switch. The court permitted the plaintiff to introduce evidence to the effect that it was the usual mode of performing the required act to couple the cars left standing on the side track. This evidence was objected to, and an exception was taken to the ruling of the court in admitting it. We think it should have been excluded. It did not tend to corroborate the claim of the plaintiff that he was expressly directed by the conductor to make the coupling, and it could have been introduced for no other purpose. If the plaintiff was directed to make the coupling by his superior in authority, this was warrant enough to authorize the act, and his claim that he was acting in the line of his duty, would have been fully sustained without the proof of any usage pertaining to the matter. We cannot hold that the admission of this evidence was without prejudice, because the evidence as to the usage and as to the express direction is in conflict.
II. The plaintiff was also permitted to introduce certain rules adopted by the company pertaining to the duty of trainmen in the movement of cars. One of these rules was numbered áé. It had reference to “ cars and switching on grades.” The introduction of this rule was objected to by the defendant, and the objection overruled. We think the rule
III. The plaintiff was allowed to introduce evidence, over the defendant’s objection, that the proper manner of making the coupling required the conductor, when there was but one brakeman, to climb upon the cars and hold them up by the use of the brakes, so that the coupling could be made with safety. We think this evidence was competent and proper, in view of the facts in this case. The plaintiff claimed that lie stood near the conductor when‘he was ordered to make the coupling, and that, as he ascended the ladder on the car, the conductor started to follow him, and that he supposed, up until the time the coupling was made, that the conductor was on the cars, and would check their speed. It is not claimed that the conductor told the plaintiff that he would follow him upon the cars. It was therefore perfectly competent to show that by the previous methods of making couplings under the same circumstances the plaintiff had reasonable grounds to believe that the conducter would check the speed of the cars.
IY. A number of objections were made by the defendant to leading questions propounded to the plaintiff and other witnesses. The objections were overruled. These questions ought not to have been propounded. Some of them were so grossly leading as to plainly indicate to the witnesses the answer that was desired. We incline to think that, if this were the only error in this case, we would feel compelled to reverse the judgment for this reason. The overruling of an objection to leading questions, and, upon an inquiry not vital to the case, is not ground for reversal. Much is due to the discretion of the trial court. But when counsel put a party to the action upon the stand as a witness, and persist in leading and instructing him upon the vital points in the case by questions which are plainly improper, there must be some means resorted to by the courts to prevent it. When such a question is asked, an objection by opposing counsel, even if sustained by the trial court, does not prevent the mischief. Whatever injury or prejudice there may be to the opposite party is accomplished by asking the question.
We have said this much about the real merits of this case, because it is but one of many cases of this class which have come to us made up on a record which shows that counsel urge and insist upon the introduction of improper evidence, and that which is palpably immaterial, and not necessary to the maintenance of the action. It is not at all surprising that the trial court should err in some of the rulings in such cases. The ruling is required to be made at once, in the hurry of the trial, and without much time for reflection. It would be far better practice if counsel would refrain from attempting to crowd and push into these cases all the immaterial and improper evidence within their reach which the court will permit. Cases should be presented in the trial court with some regard to the contingency that they may be appealed to this court.
Reversed.