33 Kan. 298 | Kan. | 1885
Lead Opinion
This action was brought by Patrick Mackey against the Missouri Pacific Railway. Company, to recover for personal injuries sustained by him while employed by the defendant company as fireman upon a switch engine, and which injuries he alleges were occasioned solely by the gross carelessness and negligence of the employés of the railway company other than himself.
Among the facts about which there is little if any dispute, may be stated the following: The railway company has control of two track yards, in and adjacent to the city of Atchison, commonly designated as the “upper yard” and the “lower yard,” and which are about one mile apart. On February 11, 1882, the defendant company was using and operating two switch engines with their crews in these yards in running and switching cars; the engine designated as number 166 being chiefly used in the upper y^rd, and the other, known as number 154, being principally used in the lower yard, although each engine also hauled and pushed cars from one yard to the other, and both engines and their crews were used in the common employment of the defendant. The plaintiff was serving as fireman on engine number 166. On the day the accident occurred, number 154 started from the lower yard with from ten to fifteen loaded cars for the purpose of placing them upon the side tracks in the upper yard, where engine number 166 was at the same time employed in transferring cars from one point to another in the upper yard. About the time that number 154, going westward, entered the upper yard, engine number 166 was backing eastward, when the two engines collided, wrecking the engines, and crushing plaintiff’s foot and leg so that it became necessary to amputate it, which was done on that day. The collision occured on a bright clear day, between eleven and twelve o’clock in the forenoon. The ground was level, and the track was straight for a distance of about a quarter of a mile east of the point of collision, and the engi
The case has been twice tried in the district court of Atchi-son county. At the first trial a verdict was rendered awarding the plaintiff $11,000, in damages. This verdict was by the court set aside for error in the admission of testimony; and upon a second trial, occurring nearly a year afterward, a verdict was rendered in favor of the plaintiff for the sum of $12,000. Numerous errors are assigned and discussed by counsel for defendant, which we will consider.
I. It is first urged that if the plaintiff can recover at all, it must be under and by virtue of an act of the legislature approved February 26,1874, which provides that: “ Every railroad company organized or doing business in this state shall be liable for all damages done to any employé of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineer or other employés, to any person sustaining such damage;” that under this statute a liability is attempted to be created against a railroad company where none
“ The argument, briefly stated, is, that under the statute railroad corporations are subjected to penalties and liabilities, which other persons and corporations engaged in like business are not subjected to. That the business of operating a railway is peculiarly hazardous to employés engaged in the operation of the road, must be admitted. Counsel have not called our attention to any business which is equally hazardous, and as the statute is applicable to all corporations or persons engaged in operating railroads, it seems to us it does not discriminate in favor of or against any one. We think it is a pure question of legislative discretion, whether the same penalties or liabilities should be applied to carriers by canal and stage coach, or to persons and corporations using steam in manufactories, as is prescribed by statute in relation to railroad companies. The provisions of section 30 of article 3 of the constitution of this state are quite similar to the fourteenth amendment to the constitution of the United States,.if not in spirit identical, in so far as either can
II. A witness named John Steele was produced in behalf of plaintiff, who in response to questions gave the following testimony:
“Q,. What business were you engaged in on the 11th of February, 1882? A. Running an engine on the Central Branch.
“ Q. How long had you been running an engine there ? A. About two years.
“Q. Had you any experience as a fireman before that time? A. Between three and four years.
“ Q.. Had any experience as a fireman on a switch engine at Atchison, Kansas, before that time? A. Yes, sir; fired a switch engine here in the yard for six months.
“Q,. What was the general duty of a fireman on a switch engine, while the engine is being moved from one point to another in the yard, at that time?”
The defendant objected to the question last asked, stating as a ground of its objection that it called for the opinion of the witness without any proper foundation having been laid to ask the question; and further, that it was not a proper subject of expert testimony.
While wTe are inclined to agree with the counsel in their claim that the inquiry did not relate to that which was a subject of expert testimony, we still .think that it was unobjectionable, and that the witness was competent to answer the same. It was not a question involving special skill or scientific knowledge. What the general duties of a fireman in the Atchison yards were, or, what is equivalent thereto, what duties were generally performed by firemen in the yards at that time, was a question of fact within the common observation of a great many people; and as stated by Chief Justice HoktoN in Monroe v. Lattin, 25 Kas. 354, “it is a-familiar rule that witnesses
The facts here inquired of are such that anyone having personal knowledge thereof is competent to testify to the same, no matter how such intelligence may have been gained. But it will be observed that the witness Steele assumed to speak from personal knowledge. The preliminary testimony given by him shows that his opportunity for learning the facts was amjüe. He was engaged as an engineer in the service of the defendant at the time Mackey was injured; had been running an engine for two years; had had experience as fireman between three and four years, and had actually served as a fireman on a switch engine at Atchison, Kansas, and in the yai’d where the plaintiff was injured. Possibly the master mechanic, yardmaster, or the person who had the direction and control of the firemen on these switch engines, might, by reason of their position and experience, have had more exact information upon the subject than this witness, yet the testimony of common observers upon such subjects is admissible so far as such observation goes. (Commonwealth v. Dorsey, 103 Mass. 420; Funston v. C. R. I. & P. R. Co., 61 Iowa, 452.)
Whether he was acquainted with the facts, or whether he stated them correctly, could have been inquired into by defendant, and tested upon cross-examination. The answer he gave was: “ The duty of a fireman on an engine is to keep the engine hot, to keep steam on, and to assist the engineer in watching for signals.”
It is claimed by counsel that this testimony wras in effect an opinion of the witness that the plaintiff was in the exercise of ordinary care at the time the accident occurred. Not so. There v'as obviously no purpose to get from the witness his judgment, or an opinion in regard to the manner in which plaintiff had performed this work, or whether he was properly discharging his duty at the time of his injury, nor did the testimony given by him go to that extent. The inquiry went only to the work generally performed by a fireman on an engine in those yards
In Allen v. Railroad Co., 57 Iowa, 626, which was referred to by counsel in support of their objection, the court decided that while a witness ought not to be permitted to express an opinion that a particular manner of performing the services was required of a brakeman in the discharge of his duty, yet it ■was competent for the witness to state as a fact what services were performed by the brakeman in the discharge of his duty. It may be added, that testimony of a like character was offered on the part of the railway company, and all the testimony given in behalf of either party upon this subject agrees substantially with that given by the witness Steele.
We think there was no error in admitting this testimony; and what is said respecting its admissibility is applicable to other testimony of a like character objected to by defendant.
III. Objection is made by the defendant to the ruling of the court in restricting the cross-examination of the plaintiff. After he had testified in chief in relation to the work performed by him as fireman, the defendant asked him the following question upon cross-examination, which -was objected to and excluded: “Did you consider it the proper discharge of your duty at that time for each of you to be looking west, and that train going east as fast as a man could walk?” Under the latitude which is usually allowed in the cross-examination of a plaintiff, we think the question might have been allowed without doing any injustice to the plaintiff. However, it was not strictly pertinent or material to the issue in the case. "What he considered to be his duty was unimportant. The question was, what were his duties, and was he in the proper performance of the same at the time and immediately prior to the collision? There was no error in its exclusion.
“The plaintiff, in accepting employment as a fireman upon one of the defendant’s yard engines, assumed the ordinary hazards of that occupation. It was his duty to take ordinary care to avoid danger to himself, and he had a right to assume that his fellow-servants engaged in the management and operation of said two engines and their respective trains, would exercise ordinary care toward him. But he had no right to assume that they would exercise extraordinary care, or the highest degree of diligence, to avoid injury to him.”
Other of the instructions asked were to the effect that any negligence on the part of the plaintiff would prevent a recovery. These would imply and hold the plaintiff to a higher degree of care than is by the law required of him. He was not bound to exercise extraordinary care and prudence, and the instructions were properly refused.
Some other exceptions are taken by the defendant to the ruling of the court, both upon the instructions refused and given, but in view of the decisions heretofore made by this court we think it is needless to discuss them. It is enough to say that we have examined them carefully, and that every rule of law proper and necessary to be stated to the jury, embraced in those that were requested, was included in the instructions given to the jury, and that the charge of the court, in its entirety, states the law applicable to the case fully and clearly.
V. The defendant assigns as error the refusal of the court to submit a few special questions of fact. We have examined them, and find no error in the refusal. There were one hundred and thirty-nine special questions submitted to the jury, embracing almost every material fact in the case. Some of those that were requested were modified so as to make them harmonize with others allowed. A part of them had been submitted in different form, and the remainder of the questions refused do not appear to have been material.
VI. It is next urged that the court erred in overruling the motion for a new trial; that the testimony is not sufficient to show that the coémployés of the defendant were culpably
The findings of fact returned by the jury all consistently show that the coemployés of plaintiff could, by the exercise of ordinary care, have avoided the collision; and the further finding is made that the plaintiff was performing his duty, and in the use of ordinary care, when the accident occurred. We have read the testimony, and have reached the conclusion that it abundantly sustains the finding that the engineer in charge of engine number 154 was culpably negligent in the management of his engine. He saw the other engine at work in the upper yard long before reaching it, but he came on at a speed of from four to six miles an hour, the other engine being all the timé in plain view, and yet he never gave any signal or warning of his approach, nor did he make any effort to stop his engine until he was within a few feet of the other engine, and only two or three seconds of time elapsed between the sounding of the danger-signal and the collision. There is no v doubt from the evidence that he could have stopped his engine after the danger of collision became apparent to him. Whether the engineer in'charge of engine number 166 noticed the approach from the east of engine number 154, does not appear; His engine had been running backward and forward in the upper yard switching cars, and shortly before 154 came into the yard it had been pushing cars in the opposite direction from which engine number 154 was coming. He then backed his engine east at the rate of from four fix six miles an hour a distance of about five hundred feet to the point of collision. Some reason may be found for his failure to observe the approach of engine number 154, though in backing that distance, and at that rate, in a track yard where other engines were employed, ordinary care and prudence would seem to require that he should have looked for obstructions in the direction in which he was moving. It is strongly urged that it Avas equally the duty of plaintiff to keep a lookout for obstructions, and if he had done so the accident might have been avoided.
The evidence in the record tends to show that the engineer
It is finally urged that the judgment should be reversed because thedamages awarded to the plaintiff by the jury are
The plaintiff was thirty-nine years of age at the time of the injury, with an able body and good health. His lower leg and foot was badly crushed, and was amputated about twelve inches below the knee; his suffering was great and protracted, so that he was confined to his bed for about two months, and he has been under medical treatment more or less ever since that time. It is stated by one of the physicians, who testified in the case, that as an effect of the amputation he has what is called degeneration of the nerves of the stump, and that he will probably suffer more or less pain from it during his lifetime; that it will affect his nerves, disturb his sleep, and impair his general health, with a likelihood that the affliction will increase with time. Another physician, who testified, stated that the plaintiff has not since the amputation been as strong as formerly; that he suffers pain; that the stump is unduly sensitive on account of the inflammatory action of the nerve, causing the surrounding muscles to be very sensitive, and as a result there is a constant irritation of the nerves; that this irritation and suffering will continue at least until another amputation is made; that in the present condition of his stump, he cannot wear a cork leg, nor will he ever be able to wear one without undergoing a secondary amputation, which would be attended with danger and with the risk that the same condition of the stump might exist afterward.
On all these considerations, the jury awarded the plaintiff twelve thousand dollars. A former jury allowed eleven thousand dollars. Considering these facts, together with other circumstances that need not be mentioned, we cannot say that the award is so excessive as to lead to the conclusion that the jury were actuated by passion, prejudice, or corruption. The ver-
The judgment of the court below must be affirmed.
I differ to some extent from my brethren, and radically from the Chief Justice, as to what constitutes knowledge of a primary character as contradistinguished from mere opinion, inference, or conclusion; and the decision in this •case illustrates such difference.' The court below, over the objection of the defendant, permitted John Steele, a witness for the plaintiff, to answer the following questions, to wit:
“1. What was the general duty of a fireman on a switch engine, while the "engine is being moved from one point to another, in the yard at that time?
“2. Suppose at a given time the fireman is feeding his engine, is it his duty then to look out?
“ 3. State, in the order in whieh they eome, what the general duties of a fireman on a switch engine were on the 11th day of February, 1882, when moving from one point to another in the yard?”
The court below also on the cross-examination of the plaintiff, who was a witness on his own behalf, and who had previously testified that he was a fireman on a railroad engine of the defendant, and had testified with regard to his duties as such fireman, sustained an objection of the plaintiff to the following question asked by the defendant, to wit:
“Did you consider it the proper discharge of your duty at the time for each of you to be looking west, and that train going east as fast as a man could walk?”
A majority of this court sustains all these rulings of the court below, upon the theory that the views or beliefs entertained by a person as to what constitute the duties of a fireman on a railroad engine are, when derived from personal observation, not merely matters of opinion or inference, but is knowledge of a primary character. In this I differ from my brethren. I believe that all mental conceptions or operations are merely opinions, inferences, or conclusions, except the di
One of the questions which was to be proved on the trial of this case was, whether it was the duty of the plaintiff, while he (as fireman) and the engineer were operating a switch engine in the engine yard of the defendant, to look out for dangers, or not. The defendant claims that such was his duty/ and that if he had so looked out no injury would have occurred • while the plaintiff claims — first, that it was not his duty to so look out; and, second, that if such was his duty, still, “that in the order in which they [the duties] caihe,” this duty was the last to be performed, and was to be performed only when he had nothing else to do; and that in the present case when the injury occurred he was already engaged in the performance of another and paramount duty. All the foregoing questions were asked for the purpose of showing what was or what was not the duty of the plaintiff in this respect. All the questions asked of the witness Steele are approved by a majority of this court, because, as a majority of this court holds, they were put to him in such a manner as to obtain evidence which is not opinion, or inference, or conclusion, but is evidence of a higher character. Also, it is held by a majority of this court that the question put to the plaintiff himself on cross-examination might be excluded without error, because it was put to him, not to obtain his knowledge, but merely to elicit an opinion from him, or, in other words, to obtain what he considered to be his duty. In all these matters, the majority of this court treats the mental conception of what is or is not a duty, when such conception is derived from personal observation, as original and primary knowledge, and not as opinion or inference or conclusion. Hence the approval of the questions asked the witness Steele, and the disapproval of the question asked the plaintiff on cross-examination.
In my opinion, the mental conception of what are or what
Some of the duties of firemen on railroad engines may come within the common knowledge of people in general, and if they do the courts may then take judicial notice of them without proof. Others, undoubtedly, are matters of experience and skill, and come within the knowledge of a class of persons only, usually called experts, and can be testified to only by such class. And others still may not be matters of judicial knowledge at all, nor the subjects of expert, testimony at all, but can be proved only by proof of the detailed facts which tend to show
I am inclined to think that a sufficient foundation was laid for the introduction of Steele’s testimony, provided a foundation would render it competent; and I also think that the question asked the plaintiff on cross-examination, included an assumption of the existence of a fact not warrrnted by the previous evidence; and therefore, with considerable doubt, I shall concur in affirming the judgment of the court below.
Concurrence Opinion
I concur in the judgment in the foregoing case, but deem it important to add a few words to what has already been stated by the other members of the court.
As to the affirmance of the judgment below, it is immaterial, in my opinion, whether the answers given by Steele to the questions propounded him were matters of opinion, or of personal knowledge. If the questions put to him were for the purpose of obtaining his opinion only, then he was competent as an expert to testify. The evidence shows that he was engaged as an engineer in the service of the railroad company at the time the plaintiff was injured; that before the injury, he had worked three or four years as a fireman, and had actually worked as a fireman for several months on a switch engine in the yard of the railroad company at Atchison, and in the identical yard where the plaintiff was injured. Therefore, Steele, strictly speaking, was one who, by practice and observation, had become experienced in the duties of a fireman. But I do not think that the questions put to Steele were intended to obtain merely his opinion of the matters inquired of, but were intended to elicit from him facts of which he had personal knowledge. Therefore the question arises, whether a witness who has actual knowledge' may testify what the gen
My conclusion is, that where the general duties or general services of a servant or employé are not prescribed by written orders or rules, that any witness, having actual knowledge of such general duties or services, may testify as to what they are, of his own personal knowledge.
In the dissenting opinion, the following question put to the plaintiff is referred to and commented upon: “ Did you consider it the proper discharge of your duty at the time for each of you to be looking west, and that train going east as fast as a man could walk?” I think that this question was properly excluded, because it seems to me it was asked solely to confuse and mislead the jury. I do not understand that there is any
