Henry v. Sioux City & Pacific Railway Co.

75 Iowa 84 | Iowa | 1888

Reed, J.

— This cause has twice been in this court' before the present appeal. See 66 Iowa, 52, and 70 Iowa, 238. The accident occurred while plaintiff was making a coupling. A number of.cars were moved from the main track to a side-track, by the operation known as “kickingin.” Plaintiff, who was the only brakeman on the train, removed the pin which coupled the cars to the engine, and gave the signal to the engine to back, and, when the cars were run onto the side-track, he went on top of one of them, and proceeded to the rear end of the last car, where he descended to the ground, and ran to a standing car, for the purpose of coupling it to the others. He succeeded in making the coupling, but was struck by the moving cars and thrown to the ground, and the trucks passed over one of his feet, inflicting a serious and permanent injury. His claim is that he,made the coupling in obedience to a direction of the conductor, who was his superior, and whose orders he was required to obey; that it was the custom in the performance of such work for the conductor, when there was but one brakeman on the train, to go upon the moving cars, and by applying the brakes reduce their speed so that the coupling could be made with safety; and that when the conductor gave him the order to make the coupling in question he indicated by his actions that he would follow him onto the cars for that purpose, but that he neglected to do so, and that the injury was in consequence of that neglect. He also claims that when he started to make the coupling he believed that the conductor would perform that duty, and that, when he went between the cars, he did not know that it had not been performed, or that the speed of the cars had not been reduced.

i. railboads : 8?iurytooais: oontrlbutory guest?on°for jury. I. It was insisted in the argument that the evidence shows conclusively that the plaintiff was guilty of such negligence contributing to the injury as defeats all right of recovery. Plaintiff testilled that when he went upon the cars they were moving at a rate of from four to five miles per hour, and the jury found specially that they were moving at four and one-half miles. He also testified that when he reached the top of the car, and got upon his feet, the conductor was by the side of the car, with his hand on the ladder, and was apparently about to follow him, and that it had been the uniform custom during the time he had worked upon that train, which was ten days, for the conductor to go upon the cars under like circumstances, and apply the brakes. Also that he did not notice when he descended from the cars that the conductor had not gone upon them; and that from the time he reached the ground until he was struck and thrown down, his attention was given to the matter of the coupling; and that he did not notice that the speed of the cars had not been reduced. If these are the facts of the occurrence, it cannot be said, as matter of law, that plaintiff was guilty of contributory negligence ; but the question whether he was so guilty is in the nature of an ultimate conclusion to be determined from the facts, and it was the province of the jury to determine it. It is true that by a glance to the rear when he was about to descend from the cars he could have seen that the. conductor had not gone on top of them, and that, if he had noticed the cars as they approached him, he might have seen that their speed had not been reduced; but if it was the duty of the conductor to go upon the cars and apply the brakes, and he had been led by his conduct to believe that he was about to perform that duty, he was not necessarily negligent because he proceeded to do the work assigned to him, without first ascertaining whether he had performed it. Beems v. Chicago, R. I. & P. Ry. Co., 58 Iowa, 150. The facts as testified by plaintiff do not bring the case within Nichols v. Chicago, R. I. & P. Ry. Co., 69 Iowa, 156. In that case the evidence of the plaintiff showed without any doubt that he knew when he went between the cars that his signal to reduce the speed had not been understood, or was being disregarded. And the court instructed the jury that, if he knew that fact, or by the exercise of reasonable diligence might have known it, he could not recover. While we approved that instruction, we held that the verdict could only have been arrived at by totally disregarding it. But there was no claim, as there is in this case, that plaintiff had been led to relax that diligence in the matter which otherwise would have been required of him by the conduct of the co-employe whose duty it was to slacken the speed of the cars.

credibility' of tradietory question for II. But it was insisted that plaintiff’s testimony to the effect that he did not know when he went between the cars that the speed had not been reduced ought not to be accepted as true, for the reason that, when testifying on the former trials, he admitted that he did know that fact. Portions of his testimony on the former trials were read to the jury on this trial, and it must be admitted that it shows that he stated, on the first trial at least, that he knew when he went between the cars that the speed had not been reduced. But he claimed and testified that when he gave that testimony he was still suffering from the effect of his injury, and that he did not understand, when he gave that answer, that the question referred to that particular- time, but understood that it referred to the time when he alighted from the cars. In any event, however, the fact was one affecting his credibility as a witness, ■ and was for the consideration of the jury ; and we cannot say, in view of their verdict, that his present statement is false.

3 Railroads • cotsP; dingersple?? evi-£ tíoa°!orajury. III. There was no direct evidence that the rate of speed at which the cars were moving was dangerous, though plaintiff and one other witness testified that the speed at which cars were ordinarily moved when a coupling to a standing car was being made was but two miles per hour. Defendant introduced evidence, however, which tended to prove that couplings could safely be made when the cars were moving at a much higher rate of speed than were those in question at the time of the injury, and that it was customary to make couplings under those circumstances. And it was contended that the finding of the jury that the conductor was guilty of negligence in failing to apply the brakes and lessen the speed is against the evidence. The manner in which couplings are made was described to the jury by the witness. The weight of the cars was also proven. Now, the question whether the rate of speed was dangerous is in the nature of a conclusion to be drawn from the facts proven, and such others as are in the common knowledge of all men, and it was the duty of the jury to draw that conclusion. The opinions of witnesses who were qualified by their experience to express an opinion on the subject was competent evidence. The jury, however, were not absolutely bound to accept such opinions, or to be governed by them in forming their conclusion. But they might consider the facts and circumstances of the case, and, if the opinions given appeared to them to be unreasonable or inconsistent with those facts, they might reject them. It cannot be said as matter of law that the opinions expressed by defendant’s witnesses are correct; but the question is one of fact, and we could not disturb the verdict on this ground without usurping the province of the jury, and overturning the rule which has long prevailed here, that we will not disturb tiie finding of a jury on a question as to tlie credit which ought to be given to the testimony.

4. Pesonal in jury: measure of damages. IV. The judgment is for eight Defendant contended that the amount is excessive. As above, a nature, and is permanent. Plaintiff was nineteen years old at the time of the accident, and was a injury caused him excruciating pain for a long time. He has been compelled to submit to a surgical operation,by which a portion of the ankle-bone was removed. The joints of his ankle and foot are stiffened, and he is a cripple for life. He was a laborer, and is neither qualified nor fitted for other pursuits. His ability to labor in any vocation to which his qualifications adapt him is greatly impaired. We cannot say, in view of these facts, that the amount awarded him is excessive.

The the same as those given upon the first trial, and were approved on the first appeal, and they fully covered all the questions in the case. Those asked by defendant, and refused by the court, related to the same questions, and no prejudice could have resulted from the refusal to give them.

Aeeibmed.