Coates v. Burlington, Cedar Rapids & Northern R'y Co.

Rothrock, J. I. The deceased was about twenty-five years of age, and had three or four years’ experience on railroads as a brakeman and switchman. He had been in the employment of defendant as a brakeman on freight trains for about two months previous to his death. At the time'of the accident he-was assisting in making up a freight train at Yinton. In performing this service, he was on top of the cars, and was directed to cut off two cars from the train. He descended from the cars and signaled the engineer to back up. The signal was obeyed, and the train was backed very slowly. Immediately upon giving the signal, Coates stepped between the cars to pull the pin. He made one or two steps along with the moving train, when his foot was caught and fastened in the angle of a frog in the track, and he was run over, receiving injuries from which he died in a few hours. It is not and cannot be claimed that any employe of the defendant was negligent in directing deceased to uncouple the cars, as to the time and manner of directions given to him, nor that there was any negligence upon the part of the engineer. The evidence was undisputed that the train was — 488 — backed very slowly, and that deceased took but a step or two after be went between tbe cars, when be was caugbt in tbe angle of tbe frog. Tbe train was stopped so suddenly that only one pair of trucks passed over him. About fifteen days before the injury, tbe defendant bad put in a temporary spur track east of the switching yard at Yinton, for tbe purpose of moving earth to fill in a short piece of track. This spur track was not used for regular trains or cars, but simply for short dump cars hauled by horses. It was connected with tbe main track by tbe frog in which deceased caugbt bis foot and was injured. It is averred in tbe petition that tbe “defendant negligently constructed tbe same, (tbe spur track,) and negligently omitted to put blocks in the frogs at tbe intersection of tbe rails of said main and side track, or provide other safeguards between said rails, in tbe frog, or crotch, or intersection, at or near said switch, and whereby tbe employes of defendant using said track were wrongfully exposed to great danger and hazard.” Tbe defendant in its answer denied tbe averment of negligence, and averred that “decedent was guilty of contributory negligence and want of proper care and caution at tbe time, in so carelessly walking upon said track as to get bis foot fastened in tbe frog therein; that- deceased knew of tbe existence of said frog, its location and tbe manner of' its construction, and made no objection thereto, and was promised no change therein; that be was an experienced brakeman, and bad often worked about this frog and track, and by tbe exercise of reasonable care and caution could well have known of its location and construction, and tbe dangers thereof, if any such dangers existed in fact, and yet made no complaint, and no promise of change was made therein, and wherefore defendant asks judgment for costs.” Tbe plaintiff introduced a witness who was a brakeman, and be was examined as follows: “Ques. Now, in tbe practice of uncoupling cars, what — 489 — i. evidence: sííouid state opinions. danger is tliere, if any, from frogs ? "What danger is there to brakemen in moving along the track ? What danger is there from frogs in moving along the track uncoupling ? ” (Objected to as incompetent.) Ans. “They are very dangerous if you get your foot into them.” Another witness was asked this question: Q. “Provided two cars were together, and a person between the cars in motion, uncoupling, could he uncouple the cars, and at the same time see whether or not there was a frog upon the track at that place ? ” A. “lie could not when the train was in motion.” Q. “If a person were between two box freight cars moving while he was uncoupling the cars, could he tell whether a particular frog along the track was blocked or not blocked ? ” A. “Well, that would depend upon circumstances altogether, the speed the train was going, and how much time he had to look around.” Q. “Well, in the act of uncoupling cars ?” A. “Well, no, sir. If a train was in motion, and a man was not looking for that frog, he couldn’t see it if he went in to uncouple cars.” The questions above set out were objected to as incompetent, and in regard to those asked of the last witness the ground of incompetency was that they called for an opinion of the witness. The objections were overruled, and the defendant objected, and assigns the rulings as error. There is some doubt in our minds as to whether the objection to the first above question was sufficient, in that it did not state that the question called for an ojnnion. The objections to the questions propounded to the other witness were sufficiently explicit, and in our opinion they should have been sustained. They call for an opinion of the witness as to whether or not, when the train was in motion, a person could go between the cars and uncouple them, and at the — 490 — same time see wh.eth.er a frog in the track was blocked. This is not a fact. It is an opinion of the witness based upon a complication of circumstances. It involves the questions as to the distance between the cars, the movement of the train, and the attention of the party making the coupling to the -act in which he was engaged. It will be observed that it is not a mere inquiry whether a particular object can bo seen from a given position. The answers to the question impliedly concede that it is not physically impossible to stand or walk between two box cars coupled together, and at the same time see a frog in the track; but whether seen or not would depend on circumstances altogether — “the speed the train was going, and how much time he had to look around.” These circumstances were proper facts to present to the jury, but to group them together and allow a witness to give his opinion or conclusion upon them was, in our opinion, clearly erroneous. It was a question for the jury to determine from all the facts whether the deceased, in the exercise of proper diligence, could or should have seen the frog and avoided the injury. Hamilton v. R. R. Co., 36 Iowa, 31; Belair v. R. R. Co., 43 Id., 662; McKean v. R. R. Co., 55 Id., 192; Allen v. R. R. Co., 57 Id., 623. II. The plaintiff, among other tilings, proved an order and custom of the defendant to block all frogs'along the line 2.itAiLKOAi>s: custom to block frogs: negUgence: evidence. of its road. This evidence was objected to, and . , it was urged that the same was incompetent, be- ° 1 7 cause no such custom or order was pleaded, and that the omission or observance of the order was not in issue. We think the evidence -was not incompetent. There was an issue to which it was applicable. The negligence complained of was the failure to block the frog, or provide other safeguards at the angle in the frog. To aver that the defendant by an order had required all frogs to be blocked, and that the order was not observed as to this particular frog, would have been merely pleading evidence tending to show — 491 — negligence. Tbe existence of a general order of this char acter was important only as a circumstance in the nature of an admission that, without-some protection, frogs are dangerous to employes whose duty requires them to go upon the track in close contact with moving trains. It will be under stood that, while we hold this evidence as competent, we do not determine that the failure to block this particular frog was negligence. It was a proper fact to be taken into con sideration by the j ury in connection with the other facts in the case, such as that the frog was placed there for a temporary purpose, its location with reference to the switching yard, and other facts disclosed in evidence. III. The plaintiff introduced certain life tables, showing the probable duration of the life of a person of decedent’s 3__ death íigenee: Me tabies as evi-deuce. age. The evidence was objected to by the defendant. It is conceded that the tables intro- . duced in evidence are the standard m common use in this country, but it is objected that they are not competent evidence as to the probable duration of the life of a person engaged in extra hazardous and dangerous vocations. We think this evidence, in cases of permanent personal injuries to railway opératives, has been too long conceded to be competent and proper to be now questioned. ^ TV. The court gave to the jury the following instruction, at plaintiff’s request: “2. Defendant claims that said Coates was an experienced brakeman, and actually knew, or by the exercise of ordinary i. iitstkuc-sumption of concession not made. care could have known, that the frog where he received his ini ury was not blocked, and was o o * in a dangerous condition, and that, by remaining in defendant’s employment thereafter, without protest, or promise of amendment of the defect, he assumed such risk, and waived any right to recover for injuries caused thereby. Upon this question the jury are instructed that said Coates, by entering into and remaining in defendant’s service, assumed only the ordinary risks directly connected with his — 492 — immediate employment as a brakeman, and did not assume any risk or dangers resulting from a defective and dangerous track, or frog, unless prior to the time of his injury he actually knew, or by the use of reasonable and ordinary care, under all the circumstances, should have known, that the particular frog where he was injured was in a. defective and dangerous condition, and thereafter remained in defendant’s employment, using such track and frog without objection, or promise of amendment of such defect.” This instruction is complained of, because it assumes that the defendant conceded that the frog was in a dangerous condition. We think the objection is well taken. Appellee claims that the defendant pleaded a confession and avoidance by. averring that the deceased knew, or by the exercise of ordinary care might have known, of the condition of the frog, and that he made no objection thereto, and was promised no change therein, whereby he assumed the risk. By an examination of the averments of the answer, it will bo seen that the defendant does not admit that the frog was in a dangerous condition. It is therein stated that the deceased “could well have known of its location and construction, and the dangers thereto, if any such dangers existed in faet.” We know of no rule of ¡heading which would have required the defendant to admit that the frog was in n dangerous condition, in order to avail itself of the defense that deceased knew of its actual condition and made no complaint thereof. Y. The court further instructed the jury to the effect that, if deceased had knowledge of the condition of the frog, E.BAimoADs: ploye; em-m ploy e’s ku owl-gef-° burden1" of proof. and continued in the employment of the defendant, and made no complaint thereof, and was not x Promise(^ a change, there could be no recovery, and t]iat the burden of proving the same is on the defendant. It is ui’ged that this instruction was erroneous, because it not only required the defendant to prove that the deceased — 493 — bad knowledge of tbe defect, but also to prove that be did not make complaint thereof and was not promised a change therein. In Wells v. R. R. Co., 56 Iowa, 520, it is held that the burden rested upon the defendant to prove the affirmative allegation of the defense, to the effect that the plaintiff had knowledge of the alleged danger to which he was exposed. We think that, when the defendant has shown that fact, it may well rest npon it as a defense, and that, in the absence of some excuse from the plaintiff for exposing himself to dangers known to him, there can be no recovery. It is a general rule (subject of course to some exceptions) that a party to an action is not required to establish the negative of a proposition. "When the defendant shows that the plaintiff knew of the dangerous condition of the road or machinery which he aided to operate, it is then incumbent on, the plaintiff to show that he was in some manner justifiable in exposing himself to the danger. The fact that such proof cannot be made in some cases where the injury results in death, is no reason why the rule, that the party who holds the affirmative of an issue is required to assume the burden of proof, should not -be enforced. If the burden had been held to rest on the defendant to prove the negative, it would have been required to introduce as witnesses all of its officers and employes to whom such notice might properly be given, and prove by them that no complaint was made. YI. The court further instructed the; jury as follows: “9. If you find for the plaintiff, the measure of damages will be such a sum, not to exceed the amount claimed, as G _. per_ measure^SP: struct!on too" generai. you find from the testimony in the case will compensate for the loss sustained by the injuries, taking into consideration all the testimony before ]iav^ng a bearing thereon.” , This instruction should have been more explicit in defining the measure of damages to which the plaintiff was entitled, if any. Eor the elements of damages properly — 494 — entering into cases of this character, see Donaldson v. R. R. Co., 18 Iowa, 280. For tbe errors above pointed out, the judgment will bo reversed, and the cause remanded for a new trial. Reversed.