King v. Chicago, Rock Island & Pacific Railway Co.

Ladd, C. J. I. About August 2,1918, the plaintiff was engaged in cutting weeds on the defendant’s right of way in the vicinity of the Iowa City Canning Company’s Works. This was being done with a team and mower owned by him. The company, through its foreman, Wachs, had employed one Norval Letts, then 17 years of age, to keep a lookout for defendant’s trains. About 4:30 o’clock in the afternoon, while plaintiff was operating his mower, one of defendant’s passenger trains approached from the east, at a speed of from 36 to 40 miles an hour, and, as is alleged, negligently omitted to give any signal or warning of its approach, of which plaintiff was unaware; and, by reason of such neglect, and a like neglect on the part of Letts, and without fault on his part, said train struck plaintiff,, the team, and mower, seriously injuring him, killing one of the horses, injuring the other, and demolishing the mower. The petition further alleged that defendant knew, or by the exercise of ordinary care could have known, that plaintiff was engaged in mowing on its main track and switches, and was in a place of danger, and that, in the exercise of ordinary care, defendant’s employee could have stopped the train and avoided the collision, but failed so to do, in consequence of which the injuries mentioned occurred. A general denial and charge of contributory negligence were interposed by defendant’s answer. That plaintiff, as employee of defendant, was engaged in cutting the grass along defendant’s right of way, is not disputed. He had done so for several years, but not previously as close to the track as required when hurt. He was employed by the section foreman, who undertook to provide “someone to take care of him,” — that is, to keep, a lookout for approaching trains, and assist him in the work. Norval Letts undertook so to do. As testified by plaintiff, the work had proceeded until, “in the afternoon, I was on the north side of the track; I started on the north rail by Smith’s — 1230 — Crossing. I was pretty near to the end when the train overtook me, — I guess about ,a quarter of a mile, I should think, —maybe a little better. Going along this track, you have to move awfully slow, got to hold your horses tight, keep them exact on the rail, and keep the lines tight in your hands. I had a rope on the end of the sickle bar.” ■ He then explained that he had removed the dividing board, and put a rope on in its place, long enough so that the boy would not get into the machine; that the boy would raise the bar, upon approaching an obstruction. “Where this accident happened, it was graded 10 to 12 feet high.” A signal post was at that point, north of the track. As the mower reached it, “the boy made a scream; raised the sickle bar up. I supposed he caught on the bar. I look over my shoulder this way around, and it (train) was right behind me, and I immediately jumped off the seat to save myself, — I was scared so bad. Before I could get away from the machine, — smash 1 I didn’t know no more; I was gone to the world.” On the other hand, the engineer testified that he gave four short whistles, when within 200 or 300 feet of plaintiff. “I did not know just exactly the distance. I saw a man come from the north side of the team, go to the south side. That was after I gave this warning whistle. I had run a little west from where I gave the signal. He reached down for something. I do not know what he was doing. I supposed he was going to pick up the lines and drive his team away; then he turned around, and gave me his signal to stop. He gave this signal with his hat.” And then the collision. Letts swore that, when about 15 feet from the block signal, the team was started, plaintiff walking on the south side of the mower; that, on reaching the block signal, he raised the sickle bar, and, as it caught between some boards running to the signal block, the knives dropped down. “The train was right on top of the hill, when I seen it — 1231 — first, about half a mile away. I hallooed to him that the train was coming. He drove up in there; then he got caught. I saw the train before the sickle bar got caught. After the machine was caught there, Mr. King told me to try to pull the bar out, and I tried it. He kept going ahead with his team, kept pulling his team; he hit them with the lines. He was in the middle of the track. We have to drive between the block signal and the track, to get through, but he could have went down below and around. Q. Now, after Mr. King pulled his team over, as you say he did, what did he do, if anything, if he did anything more, — before this train struck ? A. Why, he unhooked one tug, run around, unhooked the gray horse tug, — just run around. When he got half way, the train hit. He ran around to the south. The gray horse tug he unhooked was on the north side. Just after he unhooked the gray horse tug on the north side, he run around, was going to unhook the other tug of the other horse. Just about that time, I jumped down hill. I was not close to it when the train struck the mower. When I was on the edge of the ties yet, the train was close to me. I was down the hill when the train struck the mower.” These excerpts from the evidence indicate the nature of the evidence bearing on the issues as to defendant’s employee’s alleged negligence and that of Letts, as well as the alleged contributory negligence on the part of plaintiff. !• ®vi:evidence?1”" to®ete off track. II. After Letts testified as stated, he was asked to “state whether or not there was enough time elapsed between the time you called to him, ‘There is the train,’ and the time it struck the mower, for him to have stepped out of the way?” An objection as ca^ing for an opinion and argumentative was sustained, and, we think, rightly so. To answer it, he must first have concluded at what speed the train was moving, where the train was at that time, how a — 1232 — person of ordinary prudence would be likely to have acted before the mower was hit, and what efforts he would have made to save himself. The inquiry exacted a conclusion, to be drawn from many controverted facts, and, owing to this, was not permissible. Moreover, it required of the witness to say what the jury necessarily should have passed on: that is, whether,- notwithstanding all that happened, he had time to have stepped away, and avoided injury. If, in the exercise of reasonable care, he had time enough to escape, there could have been no recovery for the personal injuries as claimed. All matters bearing on the issue submitted to the witness were shown the jurors, and they were as well qualified as the witness to pass thereon. The ruling is to be -distinguished from that in Boice v. Des Moines City R. co., 153 Iowa 472, where objection to this question, propounded to plaintiff, was overruled: “Whether or not, if the conductor had not asked you to stop, you would have had time to get on the car before it started?” Without approving this-ruling, the inquiry related to what the witness could have done in a certain time; while, in the case at bar, the inquiry called for the witness’ judgment as to whether another could have stepped out of the way of a moving train, in a time to be estimated by the witness from conflicting evidence. For these reasons, there was no error in the ruling. III. The. engineer operating the train, when asked if “sand is .of any benefit when you have a dry rail,” answered: 2. Evidence; “OTPPoseíto' use sand on rails.” “Not to. amount to anything. * * * Q. It wasn’t raining that day? A. I know it wasn’t,— this sand wouldn’t amount to anything. Q. I will put it in another form. You don’t . mean to say to the jury on a dry rail sand won’t help you stop a train? A. It doesn’t amount to very much. Q. It does some? A. Some, — it might, — not very much. Q. It is carried on the engine for that purpose, isn’t it? A. To a certain extent.” — 1233 — Re-direct Examination. “Q. For what purpose is sand carried on the engine? A. For a bad rail. Q. You mean wet or slippery rail? A. Yes, or any frosty morning, or dew on the rail, — anything like that. That is when you are supposed to use your sand, but on occasions like that we are not supposed to use that sand.” A motion to strike out what he is supposed to do, as incompetent, immaterial, and irrelevant, was sustained. As the collision occurred in an afternoon of August, there could have been no frost nor dew; and therefore, whether “you are supposed to use sand” on a frosty morning, or when dew is on the rail, is immaterial. The last clause either refers to where the rail is dry, or is meaningless. If reference was had to a dry rail, in mentioning “occasions like that,” then the ruling was favorable to defendant, and it cannot be heard to complain, for that no sand was used in stopping the train. The context indicates plainly enough that the witness, by saying what was supposed to be done or omitted, had reference to when the sand should be used, or customarily was used. He was qualified to testify on the subject, and we discover no error. 3. Negligence : last clear chance: sufficiency of evidence : employee on railway right of way. IY. An instruction that there was no evidence warranting the submission to the jury of the issue of the last fair chance was requested and refused, and defendant moved to strike all evidence bearing thereon from the record. This motion was rightly overruled, for that much, if not all, of such evidence related to other issues; and there was no error in refusing to give the instruction. The fireman on the train testified that he— “Saw the outfit .about half a mile west, when they were coming over that knoll right at that crossing there, and — 1234 — looked like three men to me at the time, — I couldn’t distinguish them. I was ringing the bell for the crossing. I kept ringing the bell from then on down, and we got within 60'0 or 8001 feet of this outfit, and we could distinguish them,— distinguish two horses and a man; and the engineer blew a warning whistle, and 1 was ringing the bell; and the man was between the rails, stooping over, like as though he were picking up the lines; and when we went on down within 80 to 100 feet of him, why, he stood upright, and took his hat off to flag us down, and almost instantaneously he started west, and went around the head of the horses, and that is the last I saw of him. The train was going 35 or 40 miles an hour. I was riding on the south side of the engine. This crossing I spoke of is at the top of the hill, about half a mile away. I thought he was going to pick up the lines and drive the team in the clear.” The testimony of the engineer was that he— “Was riding on the right-hand side, or the north side of the cab. I first saw this team and mower about half a mile away. I saw that team of horses there. I didn’t see any man with them. The team seemed stationed there. I could not tell, from where I was, whether they were moving away or not. I first saw them just about at the private crossing, just as we come from the private crossing. The first public highway is about a mile east of that. I gave a warning signal to this man on the track. I gave four short whistles. My engine was a couple 'or three hundred feet from them when I gave this warning whistle. I don’t know just exactly the distance. I saw the man come from the north side of the team, go to the south side. That was after I gave the warning whistle. I had run a little west from where I gave the signal. He reached down for something,- — I don’t know what he was doing, — I supposed he was going to pick up the lines and drive his team away; then he turned round and gave a signal to stop. He gave this signal with his hat. — 1235 — * * * Q. How close were you to the team when you did that? A. Oh, I was maybe 50 feet. * * * There was nothing more I could have done to stop' the train any quicker. It is of no value in making a quick stop to reverse the engine. It has the effect of causing the wheels to slide. We always figure on not allowing the wheels to slide.” He then testified that he had passed a number of graders and a few men mowing weeds along the track; and that it is supposed the men will get out of the road at the approach of the train; and that, when he noticed the outfit in question, he thought plaintiff would get out of the way; and that his experience had led him, to expect men on the track to wait until the engine was 25 or 50 feet away, before leaving the track; that both the horses were north of the track, but he did not see the machine, nor more than one man; that he “stopped the train as soon as he could after he flagged us down.” The witness further testified that, when running 40' miles an hour, he could stop the train within 7001 feet. “Q. Did you ever see a man before this time on a track running a mower with a wheel along between the rails mowing weeds? A. No, sir, never did.” This evidence leaves no doubt that plaintiff, with his team, was seen on the railroad track by the employees of the defendant when at a distance east of said team much farther than required within which to stop the train and avoid the collision. Amd yet, according to the engineer, no signal was given until 200 or 300' feet from him, or after all possibility of avoiding injury, were he to remain where he was, had passed. Apparently, he was then making no effort to get off the track; for, as the engineer says, “the team seemed stationed there,” and he could not tell whether “they were moving away or not.” As the train moved west, after the signal, according to both these witnesses, plaintiff then came from the north side of the team, went to the south side, reached down for something, which both witnesses thought to be the lines; and as — 1236 — he rose, he signaled with his hat to stop. This was when the train was within 50 to 100 feet from, plaintiff, and the engineer then did everything he could to stop the train, but this was too late; for the evidence that it must have moved 700 feet before brought to a stop was undisputed. The evidence was without conflict that the engineer observed this man and team, apparently giving no heed to the approaching train, when a half mile away; that, though the fireman testified to ringing the bell continuously, the engineer gave no warning whistle until too near the man and team to stop the train in time to avoid the collision; and manifestly, the only debatable issue is whether the engineer was, in view of the situation, negligent in not having his train under control, so as to be able to stop it, and in not stopping it in time to avoid injuring plaintiff and his property, in event that he was unable to, or did not, get from in front thereof. Plaintiff was an employee of the company, engaged where he had the right to be, and the employees in charge of the train owed him the duty of exercising ordinary care, not only in keeping a lookout for him when at work, but to guard against injuring his person or property while there. Whether, in the exercise of such care, they might properly have assumed that he would get from in front of the approaching train, and therefore not take any precautions for his protection, as in slowing its speed so as to be able to stop in time to avoid injury, was for the jury to decide. That both the engineer and fireman observed his situation is undisputed. The jury - might well have found that these employees were aware that he was unmindful of the approach of this train at the high speed of áO miles an hour, when more than 700 feet, the distance within which it could have been stopped, from him, and that, because he was oblivious of such approach, as the jury might have found he was, his situation was one of great peril, and so known to those operating the train, in time to have avoided the collision. This being so, — 1237 — there was no error in submitting the cause on the theory of last fair chance to the jury. 4. Trial : special interrogatories : discretion in submitting: error only as to ultimate facts. Y. The defendant requested submission of the following special interrogatory: “How far away was the train when plaintiff first learned it was coming?” The plaintiff objected thereto on the ground that it did not call for an answer conclusive upon any issue in this case, did not require a finding as to a single element of neglect, was not controlling of the verdict, and was confusing. The court refused to submit the interrogatory. Section 3727 of the Code declares that the jury “may be required by the court, and must be so required on the request of any party to the action, to find specially upon any particular questions of fact, to be stated to it in writing.” Though the statute does not specify the particular questions of fact which may be propounded to the jury, it is necessarily to be inferred that these are such as will serve some purpose in the trial, either by exacting from the jury a decisive finding, or the determination of some fact affecting the result. As said in Morbey v. Chicago & N. W. R. Co., 116 Iowa 84: “The design of special interrogatories is to point out the controlling questions in the case, exact for them separate consideration, and thereby guard against misapprehension of what are the vital issues to be determined. When the answers cover all the ultimate facts, these furnish a full explanation of the general verdict, and a safe test of its accuracy. Their use, however, should never be perverted to the purpose of confusing and misleading jurors, nor to that of merely satisfying the curiosity of parties. Yet this might, and no doubt would, often be the result, if, upon the request of either party, the jury must be required to find ‘specially upon any particular question of fact, regardless of whether it inhered in or affected the general verdict.’ A finding on — 1238 — any question if it relate to ‘material matters bearing on the issues’ contended to be sufficient by appellant, if not involv ing the final result, could be of no real advantage to either party. ‘However natural the curiosity parties may have to know the course of reasoning by which jurors may arrive at verdicts either for or against them, they have no right, under guise of submitting questions of fact to be found especially by the jury, to require them to give their views upon each item of evidence, and thus practically subject them to a cross-examination as to the entire case.’ ” On these grounds, this court has uniformly held that it is not error to refuse to submit to the jury interrogatories calling for other than ultimate facts. Trumble v. Happy, 111 Iowa 624; Wilder v. Great Western Cereal Co., 136 Iowa 263; Payne v. Waterloo, C. F. & N. R. Co., 153 Iowa 445. Nor is the court required to submit any interrogatory the answer to which would not be decisive of the cause or claim contáined therein. Nodle v. Hawthorn, 107 Iowa 380; Jones v. Ford, 154 Iowa 549; Ottaway v. Milroy, 144 Iowa 631; Neidy v. Littlejohn, 146 Iowa 355. To require the submission of a special interrogatory, it must call for an ultimate fact, and an answer decisive of the case or some claim involved therein. Heinmiller v. Winston Bros., 131 Iowa 32; Brown Land Co. v. Lehman, 134 Iowa 712; Schulte v. Chicago, M. & St. P. R. Co., 114 Iowa 89; Rutherford v. Iowa Cent. R. Co., 142 Iowa 744. If the interrogatory does not exact an answer calling for an ultimate fact, or is not decisive of the case or claim, involved therein, it is not error to refuse the same. Kuehl v. Chicago, M. & St. P. R. Co., 126 Iowa 638; Engvall v. Des Moines City R. Co., 145 Iowa 560; Luisi v. Chicago G. W. R. co., 155 Iowa 458. There are cases, however, where the refusal of a proper special interrogatory or some other irregularity will not be regarded as error. Brooks v. Van Buren County, 155 Iowa 282; Conway v. Murphy, 135 Iowa 171; Taylor v. Wabash — 1239 — R. Co., 112 Iowa 157; McGuire v. Chicago, B. & Q. R. Co., 138 Iowa 664; Luisi v. Chicago G. W. R. Co., 155 Iowa 158. It is not always easy to determine what is an ultimate fact, or what answer will necessarily be decisive of the issue, and it may be that decisions will be found impinging somewhat on the rules as recited above. Thus, it may be doubtful whether all the interrogatories submitted to the jury in Decatur v. Simpson, 115 Iowa 318, copied from Beck v. German Klinik, 78 Iowa 696, were ultimate and decisive; but the decisions upholding their submission were on the ground that they “called for ultimate facts inhering in and necessary to be determined in reaching a verdict.” In Runkle v. Hartford Ins. Co., 99 Iowa 414, in approving the refusal to submit certain interrogatories, it was said that: “The court was not required to submit interrogatories for findings of fact not necessarily determinative of the case, nor to submit particular questions not ultimate in their nature, or which could not well be considered or answered without, danger of conclusion or misrepresentation.'” In sustaining the refusal to submit interrogatories, in O'Leary Bros. v. German-American Ins. Co., 100 Iowa 390, the court said: “It is not error to refuse to submit interrogatories as to immaterial facts, nor that .are not ultimate in their nature, that may not be answered by ‘Yes’ or ‘No,’ or in some other brief or pertinent way.” See, also, Hawley v. Chicago, B. & Q. R. Co., 71 Iowa 717; Thomas v. Schee, 80 Iowa 237, 238. In In re Estate of Townsend, 122 Iowa 253, the defendant requested the submission of ten special interrogatories, which the court refused; and it was held that the first, sixth, and eighth should have been given, for that “they each called for ultimate facts, material to the issue in the case.” Though it be doubtful whether one or two of these inter — 1240 — rogatories were such as designated, the error in refusal was put on the ground stated; and in Scagel v. Chicago, M. & St. P. R. Co., 83 Iowa 380, the refusal to submit several interrogatories was justified, for that the answer “would not have controlled the general verdict, and is not reversible error.” It is apparent from these decisions that, regardless of how the language of the statute might have been construed, it has actually and uniformly been so construed as that, to constitute error in the refusal of a special interrogatory, it must have called for an ultimate fact, and an answer decisive of the case or of some claim involved therein. A large discretion is lodged in the trial court in the matter of submitting questions to the jury, even though omitting one or both of these elements; but we know of no case declaring that the refusal to submit an interrogatory not calling for an ultimate fact, or the answer to which would necessarily be decisive, has been regarded as an error. In the absence of prejudice,, submission of interrogatories cannot well be denounced as erroneous. Error may be predicated only on the refusal of an interrogatory exacting an answer decisive of the case and calling for an ultimate fact. Any answer that might have been made would not have been controlling or decisive of any issue in this case, nor would it have called for an ultimate fact. The defendant might have been found negligent had plaintiff not observed its train until looking over his shoulder immediately before being struck, as he testified, or if he had seen it much farther back, and without fault, had he observed its approach at the time described by Letts and other witnesses. There was no error in refusing to submit the special interrogatory. — 1241 — 5. Negligence: last clear chance doctrine : erroneous instruction only applies upon discovered peril. — 1240 — The doctrine of last fair chance was submitted in the eighth instruction. The first two objections thereto relate to the state of the evidence, rather than to the rules of law — 1241 — found in the instruction. Thus, in the first, it is said the evidence was insufficient to warrant giving the instruction. We have already ruled otherwise. The second objection reads: “There is no competent evidence that, at any time after it became apparent to the engine men, as reasonable men, that the plaintiff was in danger of being injured, there was no effort to stop the train to prevent the injury, under the undisputed evidence.” This again fails to criticise the instruction. It seems to assert that there was no evidence that, after the engineer observed plaintiff in danger, there was no effort to stop the train. If it does not mean this, we are unable to interpret the language used; and if it does, no one will pretend that it was necessary to prove that no effort was made. The evidence was such that the jury might have found that, after the discovery of such danger, no timely effort such as ordinary prudence dictated was made to avoid injury. The first part of the third objection was that the instruction “requires too high a degree of care on the part of the appellee.” This point was not raised in brief point or argument. The exception taken in the brief point and argument is to that part of the instruction wherein the jury is told not only that, if “the employees of the defendant company saw plaintiff upon the track and in danger of being injured,” but also that “if it ought to ham been known to defendamos employees, in the exercise of reasonable and ordinary care on their part that they might, by the exercise of reasonable diligence” have avoided the collision, then plaintiff would be entitled to recovery. If the words in italic were properly included, the degree of care exacted, i. e., ordinary care, was such as by law required. The trouble with the instruction is that these words should have been omitted. Their omission, — 1242 — however, would not have changed the degree of care required from defendant, — that is, ordinary care to avoid injury to the plaintiff. The error was in defining a situation in which it was said the doctrine of last fair chance applied, — that is, when defendant’s employees did not know, but ought to have known, the plaintiff’s peril; and such was the error assigned and argued. This did not involve a higher measure of- care on the part of either party than exacted by law, as expressed in the instruction. The statute then in force required that: “All objections or exceptions thereto must be made before the instructions are read to the jury and must point out the grounds thereof specifically and with reasonable exactness; * * * and no other objections or exceptions shall be considered by the trial court upon motion for a new trial or otherwise, or by the Supreme Court upon appeal.” Section 370'5-a of the Code Supplement, 1913. The error complained of was not in the degree of care exacted, but that a situation was stated in which the doctrine of last fair chance ought not to have been applied. This objection was rightly disregarded. — 1243 — 6. Negligence : last clear chance doctrine : erroneoils instruction : harmless error. — 1242 — - The counsel in their argument referred only to the above objections, but, as appears from the abstract, later on, an objection was interposed to this instruction on the ground that “it submits tbe case to the jury upon the theory, not what defendant’s employees knew, or knew and from knowing was reasonably apparent to them, but upon the theory of what ought to have been known and should have been seen in the exercise of ordinary care, whereas no duty arises under said doctrine (last fair chance) until the plaintiff is seen and his dangerous predicament is or should be appreciated.” The writer was misled in the first instance by the quotation of the objections in appellant’s brief, previously considered, and entire omission of reference thereto. The instruction was erroneous, as appears in Bourrett v. Chicago & N. W. R. Co., 152 Iowa 579, 582, and subsequent decisions. — 1243 — The error, however, was without prejudice. Roth the engineer and fireman testified that they saw the plaintiff’s outfit when the train was about one-half mile from where the collision occurred. The fireman testified that he kept looking at such outfit until the head of the engine cut off his view; that he saw only one man, but did not see the mower; that he kept ringing the bell for the crossing until within 600 or 800 feet of the outfit, when the engineer blew a warning whistle. The engineer swore that he was 200 or 300 feet from the outfit when the whistle was blown, but that he did not exactly know the distance; that he then noticed the plaintiff' come around from the north of the team; that he then gave a signal and shut off the air; that he saw only one man; that when he saw plaintiff Come around from the north of the horses was the first time he saw, them. The day was bright, and the road straight. As the evidence of the engineer and fireman is that they saw the outfit at a distance of a half mile, and that they continued in their seats and continued looking through the cab windows up to the time of the collision, there is no room for saying that they did not see whatever anyone would have seen, and therefore they necessarily saw what one in the exercise of ordinary care would have seen. Said employees are held to have appreciated plaintiff’s peril, if a person of ordinary prudence would have done so, and this issue was fairly submitted to the jury by the instruction under consideration. The error was, then, without prejudice. Objections raised to the seventh instruction require no attention. — 1244 — 7. trial: instructions: applieaingsr evidence" — 1243 — Complaint is made of the court’s refusal to instruct the jury that there was no evidence that plaintiffs bad eye was in consequence of the accident; that defendant was not re — 1244 — sponsible therefor; and that the claim was withdrawn from consideration. No ^^111 f°r injury to the eyes was made in the petition, nor was any submitted. Moreover, there was evidence that/his sight “was number one” before, and that his right eye, at the time of the trial, “glimmers.” In this state of the record, there was no error in refusing to instruct as requested. 8. Appeal and error : assignment of error: brief points: sufficiency. Errors 4 and 5 are assigned generally to the overruling or sustaining “objections” to questions asked certain witnesses, without referring to any particular question or ruling. The brief point is no more definite. This is too indefinite to call for a review of the rulings, and that challenged in the seo ond assignment of errors is not debatable. We discover no reversible error, and the judgment is — Affirmed. Evans, Gaynor, Preston, and Stevens, JJ., concur.