Pearl v. Omaha & St. Louis Railroad

Ladd, C. I.- [539] 1 2 [538] The deceased was in the employment of defendant as rear brakeman, and the train on which he made his last trip reached Blanchard after 12 o’clock at night, oh-its way from Stanberry, Mo., to Council Bluffs, Iowa. The engine, to which were attached 12 or 13 freight cars, stopped north of the depot, on the main track, at the water tank, so that the caboose stood several car lengths to the so\ith of it. The crew, except the fireman, entered the depot; and, upon the arrival of a southbound train on the east side track, Pearl said to the conductor, “Are we ready ?” to which the latter responded, “Yes; as soon as we set this car out, we will go.” Thereupon the engineer returned to his place, the head brakeman proceeded to tell him to pull down and set the car of lumber out, and, when the train had moved some distance, Pearl signalled it to stop, whereupon he cut off the six or seven cars, with the caboose, behind the car of lumber to be left. The engine, with the attached cars, moved beyond the switch, which the head brakeman set for the house track, next to the main track and, after Pearl uncoupled the last car, backed and kicked it to the south on the house track. Both brakemen had been working on the left or west side of the train; and Pearl, whose duty it was to ride the car of lumber in and set the brake, attempted to pass over the house track at the north end (between it and the engine), in order to ascend the ladder on the other side, when the cars connected with the caboose, first detached, on which the brakes had not been set, ran against the kicked car, and moved it so suddenly toward the engine that it knocked Pearl down and passed over him; and, as the wheels of the front car on the main track dropped from the ends of the rails, the switch [539] still being set for tbe house track, he was crushed and died within an hour. The particular act of negligence alleged is that the conductor failed to set the brakes on the caboose, so as to prevent the detached cars from moving toward tire switch, as is alleged to have been his duty. Evidence introduced tended to show that in setting out a car, under tlie circumstances mentioned, it was usual and customary for the conductors on all trains on defendant’s line to set the brake on the caboose, and thereby bring the detached portion of the train to a standstill, immediately upon being disconnected. Appellant insists such evidence was inadmissible, for that it appeared the work was done as usual. This is true with respect to all save the conductor. Whether he ordinarily pursued a different method was not shown, and evidence of the customary way of doing the work was admissable, as bearing on two questions: (1) Was it the conductor’s duty to have set the brakes on the caboose? And (2) ITad the deceased a right to rely on his doing’ so ? 3 II. One Hussey testified to the customary way of setting cars out of a train, in the circumstances mentioned. He remarked that the hypothetical question described a “condition that is not very often seen”; that he did not remember any like that given, and had never been employed on this particular conductor’s train. Appellant urges that, because of these answers, his testimony should have been excluded. Precisely to what he referred is not disclosed, unless it was the situation of the crew and what was said. In any event, these responses did not warrant the rejection of his evidence, but might well be considered in determining the weight to be given to it. [539] III. Callicott, who had testified to the usual manner of setting cars out, disclosed on cross-examination that he had been discharged from employment as brakeman by defendant, as he claimed, for leaving a switch' unlocked. It ap [540] peared in a deposition taken at plaintiff’s instance that he had said in answer to- the question whether he had left it open: “I claim I left it unlocked. I didn’t leave it open. I claim I left it unlocked.” On the trial he denied so testifying, and insisted his answers were merely, “No, sir.” Appellant complains of the exclusion of this portion of the deposition.. The ruling was right, (1) because the answer at the trial does not materially differ from that in the deposition; and (2) it was an attempt to impeach on an immaterial matter. 5 IV. Exception was taken to receiving the following rule in evidence: “Conductors and enginemen will be held equally responsible for the violation of any 'of the rules governing the safety of their trains, and they must take every precaution for the protection of their trains.” It bore directly on the duty of the conductor to perform the work customarily exacted from him in the protection of his train, and was rightly admitted. 6 7 V. The conductor, who had testified to being at the station agent’s window to deliver the bill of the car of lumber to be set out, to the occurrences there as heretofore related, to seeing the rear lights of the caboose pass while there and to walking down to the'train, was asked by defendant upon cross-examination whether all that had taken, place was in accordance with the customary duties, and also “whether it was not, under such circumstances, the duty of the rear brakeman to see to the setting of the brakes on liis end of the train, when necessary for shunting of this car that was to be set out.” The mere stating of these questions is enough to show that the objection as not cross-examination was properly sustained. The custom usually followed had not been mentioned. Also certain reports made by the trainmen to the superintendent were offered. Their contents are not set out in the abstract, and the ruling of the court excluding them will be presumed correct. [541] YI. Minnie Pearl, widow of the deceased, was permitted to testify, over defendant’s objection,' that her husband was industrious, that he was earning from. $65 to $85 a month, and that his actual expenses for himself and family were from $175 to $200 per year. The objection that in saying that he was industrious she merely expressed an opinion was properly overruled. . The habit of industry is a fact to be established by any one having knowledge. The propriety of receiving evidence of what he was earni-ng and expending shortly before his death is vindicated,' and its purpose fully explained, in Simonson v. Railroad Co., 49 Iowa, 87. 9 10 [542] 11 12 [541] YU. The deceased was killed October 17, 1897, and would have been 27 years old had he lived to November 8, 1897. Life tables were introduced, indicating the expectancy of life of a person of that age. These, it is' urged in support of an objection interposed, could not be received as fixing the expectancy of life of deceased. We know of no such claim ever being made. The tables are supposed to give the average expectancy as ascertained from a large number of cases, and are received for consideration in connection with other circumstances, such as condition of health, hazard of occupation, and the like, in approximately estimating how long deceased would, in all reasonable probability, have lived, but for the loss of life in the transaction under investigation. The objection, as we understand it, is directed to the wording of the offer, which was “to show the expectancy of life of deceased,” rather than “as tending to show.” This is a distinction not likely to have been observed by the jury, and too technical for ordinary use in ruling on the admissability of evidence. The Carlisle tables as contained in the Enclopsedia Britannica were admissible without preliminary proof. Scagee v. Railway Co., 83 Iowa, 380; Haden v. Railway Co., 99 Iowa, 737. A life insurance manual, containing the American Experience tables, -by A. L. Nlitcraft, was re [542] ceiA^ed. The evidence shoAved the tables as contained therein to be in general use by insurance men throughout the state, and accepted as authority. This was enough, though the witness had no knoAvledge of the way these Avere in fact “made up,” or the class of persons included in the estimate. If generally accepted as standard authority, the book was properly received. Gorman v. Railway Co., 78 Iowa 513; Kreuger v. Sylvester, 100 Iowa, 647. The Car-lisle tables indicated the expectancy of a person 30 years old, but not of 2Y; and of this complaint is . made. But it is a matter of both common and scientific knowledge that after maturity the time of expectancy shortens with the increase of years. Hence the defendant could have suffered no prejudice. In any ©vent, the tables, to be admissible, need not sIioav the precise age, but approximately that of the person involved. As defendant did not ask an instruction limiting the force and effect to' be given these tables, it is not in a situation to complain of the court’s omission to so instruct. 13 ' VIII. Appellant seems to rely somewhat on rule 421, introduced in evidence: “Rear brakeman should never give signals to go, or allow the train to leave the station until certain that the conductor is Avith the train.” This evidently refers to pulling out of the station, and has no application to switching in the yards. 14 IX. Complaint is made of the court’s omission to give an instruction on the assumption of risks. There was no occasion for doing so. An employee never, under our statute, assumes the risk of the future, unanticipated negligence of his co-employeemf a railroad. The jury may well have found what the conductor said at the station was intended as a direction to the brakeman to set out the car of lumber, especially as it Avas so treated in his presence; that in doing such work it Avas a part of the conductor’s duties, by setting the brakes on the caboose, to stop it it and other cars, after being detached from the one being set [543] out; that deceased, because of the method usually and customarily followed, relied, and had the right to rely, on the conductor to stop said cars at the proper time; that, because of the conductor’s omission of this duty, the detached cars struck the car kicked in near the switch, and thereby caused Pearl’s death. If so, the omission of duty by the conductor occasioned the loss of life to the deceased without fault on his part. The ruling on the motion to strike the amendment to the petition merits no. attention. Even were it erroneous, which it was not, no prejudice could have resulted. The apellant’s motion to tax the costs of appellee’s denial and correction abstract to appellee is sustained. It was entirely unnecessary. — Aeeirmed.