Breen v. Iowa Central Railway Co.

Evans, J. The general nature of the negligence charged was that the defendant furnished Kelleher an engine which was old and worn and in a bad state of repair. Lack of proper inspection was also charged. It was also averred that the wheels had become flattened, and that the side bar was worn and out of repair, and that such side bar received an extra strain because of the dilapidated condition of the engine in other respects; that he received serious and permanent injuries by reason of such accident, the principal one being the breaking of his knee-cap; that he was totally incapacitated from earning any money. The defenses pleaded were a general denial, contributory negligence, and assumption of risk. By way of reply the plaintiff pleaded that shortly prior to the accident he had reported to the defendant company the dilapidated condition of such engine, and that the defendant through its roundhouse foreman had promised to repair the same. The method of the accident was that the side rod broke and the revolving parts crushed the cab where Kelleher was sitting. He was seriously injured. His permanent injury consists in a broken kneecap, the parts of which have never united except by a fibrous union. The evidence was sufficient to justify a finding by the jury that he was wholly incapacitated by the injury from following his occupation as an engineer. He. is, however, by no means wholly deprived of the use of his limb, but its strength is much affected. I. It is one of the contentions of the defendant here that theie should have been a directed verdict in its favor on the ground of assumption of risk.- The evidence on behalf of the plaintiff tended to show that the engine in question had been in use since 1882 and that it was in need of general repair. [540] The defects most readily observable appeared to be flattened wheels and worn bearings, so that the engine ponnded and jerked in its work and made hard “riding” for the engineer and fireman. Kelleher used this engine in his turn, which was once in seven days. About a month before the accident, he complained of its condition to the roundhouse foreman upon whom devolved the duty of repair. The foreman promised to repair the same as the “first job” after he could get a man competent to do it. He also stated that he had no man at that particular time who was competent. Kelleher used the engine two or three times after such complaint. Its run was from Marshalltown to Albia and return. It is contended by appellant that the promise of repair was too indefinite to justify reliance thereon. It is also urged that the time elapsed after the promise and before the accident was so great as to indicate conclusively that Kelleher was not relying upon such promise, but that he was voluntarily assuming all risk. It is further urged, also, that Kelleher inspected the engine at Albia immediately before the return trip during which the accident resulted, and that he discovered its condition at that time, and that he made no complaint and no report. It is argued, therefore, that he had better knowledge at that time of the condition of the engine than any other person, and that he necessarily assumed the risk in his further use thereof. These questions were all submitted to the jury as questions of fact under an instruction which is conceded by appellant to be correct as an abstract statement of the law. We think the appellant has no just ground of complaint at this point. 1. Master and servant: promise to repair machinery: evidence. What is a sufficient promise to justify reliance thereon by the servant, is frequently a question of fact. It. has often been held that, even though there be no express promise to repair, a promise may nevertheless be implied from language more or less indefinite. Stoutenburgh v. Dow, 82 Iowa, 184; Pieart v. Railway Co., 82 Iowa, 148; Kroy v. Railway Co., 32 Iowa, 365; Huggard v. Glucose Co., 132 Iowa, 733. [541] 2. Same: assumptions of risk. [540] Whether Kelleher continued to use the engine an unrea [541] sonable length of time was also a question for the jury. Belair v. Railway Co., 43 Iowa, 662; Foster v. Railway Co., 127 Iowa, 84; Taylor v. Star Co., 110 Iowa, 41. Appellant, however, places its greatest emphasis upon Kelleher’s inspection at Albia immediately before he started upon his return trip. If upon this inspection Kelleher had discovered some new or particular defect sufficient to indicate imminent peril in the continued use of the engine, a different question would be involved. 3. Same: defective machinery: assumption of risk: instruction. Kelleher did inspect his engine before starting, as was his duty to do, and did observe its general defective condition. It does not appear that he discovered any-thing which he did not know before raanything which he had not previously reported to the roundhouse foreman. He knew the condition of the engine after the inspection, in the same sense that he knew it before. If its apparent condition was such as to indicate imminent peril from its further use, then the plaintiff could not recover, and the trial court so instructed. We think this ground was properly covered by the instruction, and that the defendant was not entitled to a peremptory instruction thereon. It is also argued by appellant that there was no evidence that the roundhouse foreman at Marshalltown was the proper person to whom complaint of the condition of the engine should be made. Kelleher so testified, and his testimony is undisputed. II. Under the instructions of the trial court, the jury were permitted to allow damages for pain and suffering past, present, and future. It is urged that this was erroneous on two grounds: (1) Because such element of damage was not covered by the assignment of the cause of action from Kelleher to the plaintiff; and (2) because no claim was made in the petition for damages on that ground. [542] 4. Personal injury: assignment of cause of action: what included. [541] Turning first to the assignment of the cause of action by Kelleher to the plaintiff, it is true that it does not purport [542] in terms to specify damages for pain and suffering. It does purport to assign to the plaintiff “my cause of -action against the Iowa Central Railway Company based upon substantially the following facts ’ ’: Here follows therein a recital of the alleged facts out of which such alleged cause of action arose. The concluding clause of the assignment is as follows: “And I hereby assign unto said J. W. Breen all my rights, title and interest in said claim and cause of action, and confer upon him full power and authority to commence any proceedings, suits or actions which may be necessary for recovery of damages for the said wrongful and negligent acts of said company; he to have as full power in all respects thereto as I myself would have.” We think such assignment was sufficient in its terms to carry to the plaintiff Kelleher’s full cause of action, if any, arising out of such accident. 5. Same: evidence of pain and suffering: sufficiency of petition. The petition did not in terms specify pain and suffering as one of the elements of damage. It did allege that Kelleher received “serious and permanent injuries which totally incapacitated him from performing any manual labor. ” It is undoubtedly true that the plaintiff could have been required to specify in his petition the elements of damage claimed. But no such requirement was made by motion or otherwise. Under our previous holdings, evidence of pain and suffering was admissible under these allegations-, and the plaintiff was entitled to have the same submitted to the jury. Palmer v. Waterloo, 138 Iowa, 300; Evans v. Elwood, 123 Iowa, 96; Bailey v. Centerville, 108 Iowa, 26. 6. Same: measure of damages: instruction. The further complaint is made of the instructions as to measure of damage-in that the recovery, for future damage “was not limited to present value.” The language of the instruction given by the trial court is quite general at this point and is as follows: ‘ ‘ Such a sum as in your judgment will be fair compensation for the injuries which said Kelleher sustained. ’ ’ That [543] the rule or measure of damage contended for by appellant at this point is the correct one may be conceded. Dougherty v. Railway Co., 137 Iowa, 257; Williams v. Clark County, 143 Iowa, 330. It is not claimed that the instruction of the trial court contradicts this rule. It only lacks in specification. This question was considered by us in Greenway v. Taylor County, 144 Iowa, 332, where substantially the same language was used. In that ease we held that the instruction in itself was not erroneous, and that, in the absence of a request for more specific instruction, error could not be predicated upon its lack of specification. ¥e think that case must be deemed controlling here, although we deem it a much better practice for the trial courts to be specific in their instructions at this point. So we said in the Greenway case and in Williams v. Clark County, supra. 7. Same: expectancy of life: evidence. III. Kelleher was fifty-six years of age at the time of the accident and sixty years of age at time of the trial. For the purpose of proving his expectancy, the plaintiff introduced that part of the life tables showing the expectancy of a man fifty-six years of age; such , . „ ,, , expectancy appearing as a fraction less than seventeen years. Objection ivas made to this offer as immaterial, irrelevant, and incompetent, and such objection was overruled. It is now urged that the expectancy of Kelleher should have been shown as from the date of the trial and as that of a man of sixty years and not as of the date of the injury. This particular point does not appear to have been presented to the consideration of the trial court. An instruction was requested by the defendant advising the jury as to what consideration should be given by them to the life tables so introduced. This requested instruction was given by the trial court. There is fair reason for saying that resort needs to be had to life- tables, only for determining the future expectancy of life of a person. What is already past is secure and certain and has no need of ascertainment by the law of [544] probabilities. "We find no case where this particular question is considered in this form. It is quite usual to show the expectancy of life by the life tables as of the date of the injury. Trott v. Railway, 115 Iowa, 80; Croft v. Railway, 134 Iowa, 411; Pearl v. Railway, 115 Iowa, 535. We find no case where objection has ever been made on the ground now urged on this appeal. It is clear, however, that no ground of complaint is furnished here to the defendant. The rule contended for by the defendant would be less advantageous to it than the other. The years of expectancy of life at sixty, plus four years, makes a longer period than the years of expectancy at fifty-six. In proving the expectancy of Kelleher at fifty-six as of the date of the injury, the plaintiff therefore proved a shorter period ■ than if he had adopted the rule contended for now by the defendant. It is sufficient to say therefore that the defendant in such a case as this can suffer no prejudice from the rule adopted by the plaintiff. 3. Same: evidence: admissions: waiver of objection. IY. It appears from the record that Kelleher was attended for his injuries by Dr. Mighell, who was the defcndant’s surgeon at Marshalltown. This doctor continued in his treatment of Kelleher as a patient until December or January following. In July following he called at the home of Kelleher to treat another patient. On the trial of this ease, Kelleher was permitted to testify to an alleged conversation with Dr. Mighell on such occasion. This was strenuously objected to by the defendant, and error is assigned because of the admission of such testimony. The record at this point, as set out by appellee in his amended abstract, is as follows: Q. Did you have any advise in regard to an operation on this knee? (Objected to as calling for hearsay). Q. I mean professional advice. (Same objection. Overruled, and defendant excepts). A. Yes. sir. Q. With whom? A. The company surgeon and Dr. Boucher. Q. And who was the company surgeon? A. Dr. Mighell. Q. What did Dr Mighell tell you or advise you in regard to an operation on this knee? [545] (Objected to as incompetent and calling for hearsay, being a statement not binding upon this defendant and not the best evidence and not within the issues. Overruled, and defendant excepts). A. He came down to my house, I think, along in July after I got hurt, and he says, ‘I have got orders to come down and examine your knee by the company.’ He says, ‘I believe they are going to settle with you.’ I says, ‘All right, you can examine it any time you want to.’ Well, he went to work and examined it. ‘Now,’ he says, ‘they want me to take you to the hospital and cut that open again and wire it.’ I says, ‘Doctor, will it be any better if you do that than it is now?’ He says, ‘I don’t know,’ and furthermore he says, ‘ I would not advise you to do it because the chances of infection in the knee is something very serious.’ Q. What else was said then? A. He says, ‘If it heals up or the bones would grow together the knee would be stronger. ’ I says, ‘Will you guarantee the knee will be any better than it is if you do operate on it?’ And he says: ‘No, sir; I won’t.’ Q. What, if anything, did you ask him in regard to it? (Defendant moves to strike out all the answer of the witness as incompetent, hearsay, and including statements which are not binding upon this defendant and not the best evidence. Particularly move to strike out all the statement with reference to what Mr. Kelleher said to the doctor, being hearsay and a self-serving declaration). Judge Wade: He is simply asking for advice as to what was best to do with the leg. There is some of that answer there I have no — might possibly be objected to as to the conversation between the doctor and him about the leg. I do not see how that— The Court: I cannot go through the answer and pick out the parts. The motion to strike is overruled, and defendant excepts. Q. What, if anything, did you say to him about the operation as to cutting the bone or anything of that kind? (Objected to for the same reason, including all of the objections made in the motion to strike. Overruled, and defendant excepts). A. Well-, I said to him, ‘You will have to cut a piece off of the side there to get a- fresh joint to wire together.’ I said, ‘Will that have a tendency to shorten the leg, the cutting of it?’ He says, ‘It will.’ (Defendant moves to strike out the answer for the reasons stated in the motion to strike the previous answer. Overruled, and defendant excepts). Q. You haven’t had any such operation on your [546] leg? A. No, sir. Q. Did you have the advice, you say, of another doctor on the subject? A. Yes, sir. Q. State whether or not he advised an operation or not to operate? (Objected to as incompetent and not the best evidence, calling for hearsay and a conclusion and opinion of the witness). The Court: I will let him say whether he was or was not advised without going into conversation.' (Objection overruled and defendant excepts). Q. What doctor was it? A. Dr. Boucher. Q. Is he a practicing physician and surgeon in Marshalltown here? A. Yes, sir; he is the county coroner. Q. Did he make an examination of the leg? A. Yes, sir. Q. State whether or. not he advised an operation? A. He advised me not to. (Same -objection and defendant moves to strike out the answer for all the reasons stated in the motion to strike. Overruled, and defendant excepts). Mrs. Kelleher testified substantially to the same effect and over the same objections. ' It is urged by appellant that this testimony was hearsay and incompetent ojn many grounds and that it was highly prejudicial. The only argument urged by the appellee in support of the admission of this testimony is that it was given in explanation of the conduct of Kelleher in refusing to submit to an operation and that it was given to repel a claim of bad faith on his part in refusing to submit to such operation. Appellee has failed to point out to us that part of the record upon which this argument is based. We have read every line of the record in search of support for the argument. We are unable to find an intimation by the defendant or any of its witnesses of bad faith on the part of Kelleher. There was no such question apparent in the ease either in the pleadings or in the testimony. The plaintiff first injected it into the case in the opening statement of his counsel to the jury before the taking of evidence. This was followed by the testimony of Mr. and Mrs. Kelleher as a part of the main case. The defendant met such testimony by the testimony of Dr. Mighell wherein he denied the substantial part of such alleged conversation and denied that [547] such alleged operation, would have the effect depicted in such alleged conversation. To this latter proposition other surgeons were also called as witnesses. The contention of appellee is that this testimony on behalf of defendant, if it had been given in the first instance, would have rendered the testimony of Kelleher and his wife admissible in rebuttal. We do not think the argument is available. Such evidence was not given on behalf of the defendant in the first instance. It was purely defensive. The evidence so introduced by the plaintiff, if erroneous, was highly prejudicial. Elzig v. Bales, 135 Iowa, 208; Christopherson v. Railway Co., 135 Iowa, 417. Such evidence having been admitted, the defendant waived nothing by contradicting it. The evidence was calculated to arouse the hostility and to disturb the candid judgment of the jury. This of itself would not exclude it if it had any legitimate purpose or function in the case. But the record discloses no other purpose for it. We see no escape from the conclusion that the defendant is entitled to a new trial because thereof. Elzig v. Bales, supra. 9. Same: damages: loss of future earning capacity: instruction. Y. Some other alleged errors are assigned, but they are of such a nature that they are not likely to arise upon a retrial. In instructing the jury on loss of future earning capacity as an element of damage, the trial court failed to confine the consideration of the jury to such future loss of earning capacity as Kelleher was “reasonably certain to suffer.” We are not prepared to say that the instruction was not sufficient in its terms to cover this objection, but the question is not free from doubt. It is sufficient to call attention to it for the consideration of the trial court upon retrial. It is also urged that the verdict was excessive. We deem it best not to enter upon a discussion of this question at this time in view of the necessity of a retrial upon other grounds. The verdict was large and was doubtless affected to a greater or less degree by the admission of the testimony referred to [548] in the preceding division. There may be additional testimony bearing npon the measure of damage at the next trial. We think the. question should be left open, unprejudiced by any present discussion which could not be decisive. For the error indicated, the judgment below must be Reversed.