56 Iowa 546 | Iowa | 1881
I. The main facts attending the accident are not in dispute. They are as follows: The plaintiff en-' tered the service of the defendant on the, 10th day of July, 1876, as a shoveler on a construction train having its headquarters at Summit Station. On the 26th of August, 1876, this construction train was. being employed in hauling dirt to; certain places west of Summit Station, and as was its custom it was coming, into the station to lay up for the night., The train consisted of an engine and tender, and a way car, and some ten or twelve flat cars. There were about, forty laborers working on said train. There were two topi boxes, with a passage way between them, on or near the rear, end of the last flat car, and next to the way car. The way car had a door in the end next to the car with the tool boxes. -The-train usually started from the dump about the time or before, all the dirt was thrown from the cars, and as soon as the dirt was all removed the men walked along the train while it was in motion, deposited their tools in the. tool boxes, and went into the way car to get their dinner buckets and any of their clothing which might be there, and then they usually returned to the front of the train, next the locomotive, so that they could get off opposite their boarding house. On the evening of the accident the plaintiff went back to the rear oí the train for the purpose, of getting his coat and dinner bucket. When he reached the ■ rear of the last car, and was near the toolboxes, Mike O’Neil, the conductor of the train, was standing in the door of the caboose. The, speed of the train had slackened somewhat,’ and O’Neil stopped one Caffey, who was in front of the plaintiff -and about entering, the way car, and warned him off. O’Neil stooped, and pulled the pin-which coupled the way car to the train, and raised up and signalled the engineer, who put on steam, which increased the speed of the train suddenly, producing a jerk, by reason of which the plaintiff- and another of the employes fell in the opening made in. the train, by the uncoupling and increased speed, and were run over by the caboose. One of the
. ■ The theory of the plaintiff is that the conductor was negligent in uncoupling the car and giving the signal to the engineer, and that the engineer was negligent by putting on too much steam, suddenly producing a violent jerk which •threw him from the car. Counsel for the defense contend that the plaintiff was guilty of contributory negligence by . standing within from three to five, feet of the end of the cax*, • knowing that the conductor pulled the pin and made the signal, and knowing that the man in front of him had been warned of the danger; and by carelessly standing still without attempting to avoid injury to himself by any means whatever.
At the instance of the plaintiff the court submitted to the jury cex’tain special interrogatories, which, with the answers thereto, were as follows:
■ “1st. Were the conductor and engineer on defendant’s train guilty of negligence which was the px'oximate cause of the injury? Answer. Yes.
■ “2d. Did O’Neil see Jeffrey on the tool car before he, O’Neil, pulled the pin between the way car and tool car? Answer. Yes.
• “3d. Did O’Neil know where Jeffrey was standing on the tool car at the time he gave the signal to the engineer to go ahead? Answex’.' Yes.
■ “4th. Did O’Neil or the engineer give Jeffrey any warning, which was reasonably sufficient' to have pxxt hixn on his guard against what followed? Answex*. No.
■ “5th. Was it the act of the conductor and the engineer that put Jeffrey in a place of danger? Answer. Yes.
“6th. Did O’Neil see Jeffrey’s position on the tool car in time to have avoided the injury to him by exercising ox*dinary cax*e? Answer. Yes..
Certain interrogatories were also submitted to the jury at the instance of the defendant, which with the answers are as follows:
“1st. How near the rear end of the tool car was the plaintiff standing at the time he fell off? Answer. Erom three to five feet.
“2d. Was not he standing too near the end of the tool car to be reasonably safe, at the time he fell off. Answer. No.
“3d. Was he not at the time he fell off standing so near the end of the tool car that his position was evidently dangerous, in case the speed of the car he was on was increased in an ordinary degree, unless he held on to something or braced against the start? Answer. No.
“4th. Did plaintiff make any efforts at all to secure himself against a forward movement on the car on which he stood? Answer. No.
“5th. If he did make such efforts, what were they? Answer. No effort.
“5th. Did plaintiff see the conductor pull the pin? Answer. Tes. -
“7th. How much time elapsed after the conductor pulled the pin, and before the speed of the tool car was increased? Answer. About five seconds.
“8 th. Was plaintiff exercising ordinary and reasonable care for his own safety after he saw the pin pulled, and up to the time he fell off? Answer. Tes.
“9th. Was what plaintiff saw the conductor do and heard-him say in the way of uncoupling, giving warning and signal, reasonably sufficient to put plaintiff on his guard against what was likely to follow? Answer. No.
“10th. Does the evidence show that plaintiff’s injury was
“11th. If you say it was, then which one was it? Answer. Conductor and engineer.
“12th. In what particular things did such negligence consist, if you say there- was such negligence? Answer. In cutting train in two while in motion and unusual jerk.
“15th. Did not plaintiff know as much about what was going to happen after the signal to go ahead was given as O’Neil did? Answer. No.
“14th. If you have answered that the injury was in consequence of the negligence of the.conductor, then state in what such negligence consisted? Answer. In cutting train in two while in motion.
“15th. If in consequence of the negligence of the engineer, then state in what such negligence consisted. Answer. By giving an unusual jerk.
“16th. Did not the conductor after giving the warning and signal he did give, and knowing that plaintiff saw what he was doing, have reasonable cause to believe that plaintiff could and would secure himself from ordinary jerk of the train ? Answer. No.
• “17th. Is it ordinary prudence for a man with plaintiff’s experience about trains to stand the distance he was from the rear of a car about to be cut off, under the circumstances this car was? Answer. Yes.
“18th. Did the plaintiff see and understand the signal to go ahead? Answer. Yes.
“19th. Did he have reasonable cause to know from anything he saw or heard that the car on which he stood was about to be separated from the car next behind it? Answer. Yes.”
Questions one, four, and five propounded at the instance of the plaintiff were objected to by the defendant because each was in fact composed of two questions. The objection urged
The motion for judgment for the defendant on the special findings was correctly overruled for the simple reason that the,answers to the special interrogatories do not show affirmatively that the defendant is entitled to judgment. In regard to the special interrogatories submitted to the jury in this case we deem it proper to say that the court would have been fully justified in refusing to submit many of them to the jury. It is not the purpose of the statute authorizing this practice to permit parties to submit a lengthy cross-examination of the jury upon every conceivable fact in the case, whether it be proximate or remote to the main inquiry. Such a procedure tends %nly to confusion. The questions propounded are framed from the standpoint- of the party propounding them, and are often (unintentionally it may be) unfairly put.
It is urged, however, that the plaintiff was chargeable with contributory negligence because he heard the warning to the man in front of him, saw the conductor pull the pin and give the signal, and knew that the speed of the train would be increased, and that there would be danger in standing from three to five feet from' the end of the tool car without taking hold of the locks or hoops on the tool boxes, or some stakes or standards which were in reach. But there is nothing in all the evidence to charge the plaintiff with notice of tbe unusual jerk wbicb followed the signal, nor to advise him that precautions against it were necessary. He had the right to assume that the forward movement of the train would be made in the usual manner.
III. The plaintiff was examined as a witness in his own behalf. Upon his re-examination he was asked by his counsel this question: “State whether or not after O’Neil gave the signal it occurred to your mind that there was a stake behind the tool box?” Another similar question was asked as to whether or not it occurred to his mind that there was a padlock on the tool box. Both of these questions were answered in the negative. The questions and answers were objected to by the defendant, and the objections were overruled. It is insisted that whether or not plaintiff thought of the means at hand by which he might have protected himself from injury is not the standard of care which was required of him.
We are united in the opinion that there was no prejudicial error in permitting this evidence to go to the jury. 'The writer hereof is of opinion that the defendant was precluded from objecting thereto, because in the cross-examination the plaintiff had been fully interrogated by counsel for defendant in regard to the stake and the padlock, and what he thought
A majority of the court, however, are of.the opinion that the evidence in question was inadmissible, upon the ground that it was not competent for the plaintiff to exculpate himself from negligence by showing his own forgetfulness; but that under the circumstances of this case the defendant was not prejudiced thereby; that the plaintiff was not called upon to guard against a danger which he had no reason to apprehend. The accident arose from being jerked off the car. If he had no reason to apprehend such accident it cannot be said that it was the plaintiff’s duty to seize the stake or lock upon the tool box, and it not being his duty it was wholly immaterial whether he thought of them or not. The special findings of the jury show that they never reached the question as to such duty. They found in answer to the second special interrogatory that the plaintiff was not standing too near the end of the tool car tp be reasonably safe, at the time he fell off. This means, of course, so far as he had reason to apprehend. Again, they found in answer to the third special interrogatory that the plaintiff’s position so near the rear end of the car, and without holding on to anything, was not evidently dangerous, upon the supposition that there was to be a mere ordinary increase of speed. For answer to the fifteenth special interrogatory they found that there was such increase of speed as to result in an unusual jerk. In answer to the ninth special interrogatory they found that the plaintiff did not have sufficient warning to put him on his guard against what was likely to follow, when he saw the pin pulled. This shows clearly that he did not have reason to apprehend the danger to which he became exposed. It is wholly immaterial, then, whether he had in mind the stake or the lock
IY. Next it i s urged that the court erred ip permitting an answer by a witness to the following question:
This instruction was properly refused. If it had been given and the facts therein recited had been found by the jury to have been established by the evidence there must necessarily have been a verdict for the defendant. But the instruction omits one important fact, which is again and again referred to in the evidence, and that is whether or not the plaintiff had time, after he became aware of the danger, to save himself from injury. The same may be said of the 5th instruction asked and refused. See McNamara v. Dratt, 40 Iowa, 413.
YII. The 14th instruction asked and refused was as follows : “ If plaintiff voluntarily or unnecessarily placed himself in a dangerous position, and was injured thereby, he cannot recover.” Counsel in argument submits this instruction
VIII. The sixteenth instruction asked and refused was as follows:
“ The standing or being within two or three feet of the rear end of a flat car without being secure against jerks usual and incident to the handling of such cars, while the train was in motion, is of itself negligence, and if you find that plaintiff voluntarily placed himself in that situation your verdict must be for defendant.” The eighteenth instruction was in substance the same. The refusal to give them to the jury is assigned as error.
These propositions, like instruction number lfl, in effect state the rule to be that if plaintiff was in a dangerous position he cannot recover. It was for the jury to determine the question of contributory negligence, in the light of all the facts and circumstances surrounding the plaintiff at the time of the accident, and not from the mere fact of plaintiff being in a dangerous position, although he may have been in such position voluntarily.
IX. Lastly it is urged that the court erred in refusing to give the 20th instruction asked by defendant. It is as follows: “It is claimed by plaintiff’s counsel in argument that although plaintiff himself was negligent, yet that if the conductor, O’Neil, saw his dangerous position, and by the exercise of ordinary care could have avoided the injury, and if he failed to exercise such care, plaintiff could nevertheless recover. The court instructs you no such issue is made in the case, and the failure of O’Neil to do so would not render defendant liable if the plaintiff was himself negligent.”
Affirmed.