Kalbus v. Abbot

Tayloe, J. The objection to the testimony of the witness Narrow was properly overruled. This witness claimed to have owned this team about a year before the accident, and had owned them for two years previously thereto, and knew the character and disposition of the team. As the excitability and nervousness of the team was to some ex [626] tent a material question in this case, it seems to us that it was proper that this witness should be allowed to state what their character in this respect was when he owned them. The second exception, to the question put to the plaint-tiff, “Did John Monahan or anybody else ever warn you about this team? ” would seem to have been a proper exception, as it does not appear to have been material unless it had been claimed by the defendants that he had been so warned. But, if it be admitted that no such claim had been made on the part of the defendants, it seems to us that the answer to the question was so wholly irrelevant to the questions in issue that it could not have prejudiced the defendants, and should not therefore be held a sufficient ground for reversing the judgment in this case; It is insisted that it was error to refuse to submit the following questions to the jury as a part of their special verdict: “ (1) Did the team the plaintiff was driving run ■away because they were easily frightened by a locomotive and the noises usually made by locomotives when switching? (2) How far was the front of the locomotive from the plaintiff’s horses or wagon at the time such horses first attempted to run?” We think there was no error in refusing to submit either of these ■ questions. The answers to these questions would not have been conclusive of the right of either party to a verdict in the case. The questions in fact submitted to the jury covered the whole case. An exception is taken to the instructions given to the jury, and two exceptions for a refusal to give certain instructions asked by the defendants. By an examination of the instructions given it appears that most of them were drawn up by the plaintiff’s or by the defendants’ counsel, and given as requested. It seems the counsel for the defendants proposed instructions covering the whole case, which were given by the court, and occupy over four pages of the printed case. [627] The exception to the part of the instructions given at the request of plaintiff’s counsel, it seems to us, is not well taken. The instruction excepted to reads as follows: “ The fact that this team may have once before run away, or was easily frightened, was not contributory negligence on the part of the plaintiff unless the jury find that a person of ordinary care and prudence would not drive -such a team over this railroad crossing under all the circumstanees in this case, which is a question' for you to determine from the evidence.” This instruction, we think, is sufficiently favorable to the defendants, and is in fact the rule given by the counsel for the defendants in an instruction asked on their part and given by the court. The defendants asked the following instruction as to what constitutes ordinary care: “ Ordinary care is such care as men generally use in the business in which they are engaged, regard being had to the business in which they are engaged.” Understanding that the want of ordinary care in a given case is negligence, it seems to us that the instruction objected to is more favorable to the defendants than the one given at their request. The instruction in effect says that the plaintiff was guilty of negligence “ if persons of ordinary care and prudence would not have done as he did under all the circumstances.” This was certainly sufficiently favorable to the defendants, and. is more favorable to the defendants than if he had said that he was not guilty of negligence if men generally would have done as he did. It was argued that the court erred in refusing to instruct the jury as follows: “ There is no evidence in this case tending to show that the operation of the engine immediately preceding the accident whereby plaintiff was injured was attended with any unusual noises or any unusual escape of steam, and, so far as these matters are concerned, you are not at liberty to find that the defendants were guilty of want of ordinary care.” Upon the evidence in this case, [628] we think this instruction was properly refused; and we are satisfied that the jury, under all the evidence in the case, was justified in finding negligence on the part of the flagman, and on the part of those managing the engine. Taking the case as made by the plaintiff’s testimony, as we must upon this appeal, we have this state of facts: The defendants had blocked a much traveled public street in •the city of Oshkosh with their engine and cars for at least ■ten or fifteen minutes, and during that time ten or twelve teams had gathered upon the opposite side of the railroad tracks. The train is backed off the street, and the engine is hidden to those on the north side of the tracks. Immediately when the engine had passed the street, those standing on the north side are signaled to pass over, and instantly the engine changes its direction and approaches the street, blowing off steam from the cylinder cocks and from the escape valve, making a great noise, and discharging a great volume of steam, and in that way approaches ten or fifteen feet within the bounds of the street at the crossing, before the plaintiff, who stood but thirty feet north of the track and started immediately on receiving the signal, could pass the railroad tracks. Under this state of facts, it appears to us that the jury might well say it was negligence on the part of those in charge of the engine to run into the street when they must have known there were teams passing, blowing off steam in the way it is said they did. The evidence does not show that there was any necessity for blowing off the steam as it is said they did at the time they came back upon the street, and when they must have known that there were teams passing the street at the time. Common prudence would dictate that it was not a proper thing to do when entering upon a public street in a city, when it was known that teams were passing at the time. "We think the jury is supported by the evidence in finding that the flagman sig [629] naled too soon. He should have satisfied himself that those in charge of the engine were not intending to return immediately upon the street, before he signaled to the teams to cross. This is not controverted, and the signal man justifies himself by claiming the fact to be that the engine did not in fact return to the street, but continued its course easterly away from the street until after all the teams had passed over. And the engine-men also justify their conduct in blowing off steam, not because it was prudent and necessary to do so while crossing the street, but because they claim the engine was continuing its course easterly and away from the street until after the accident happened, and that at the time it happened the engine was east of the street from 75 to 150 feet, and was not on or near the street at all. Adopting the claim made by the plaintiff, and which is supported by the evidence given on his behalf as to the acts of the flagman and the movements of the engine, the findings of the jury are clearly supported by the authorities. See Penn. R. Co. v. Barnett, 59 Pa. St. 259; Guggenheim v. L. S. & M. S. R. Co. 66 Mich. 150; Petersburg R. Co. v. Hite, 81 Va. 767; Penn. R. Co. v. Horst, 110 Pa. St. 226; Manchester, S. J. & A. R. Co. v. Fullarton, 14 C. B. (N. S.), 54; Borst v. L. S. & M. S. R. Co. 4 Hun, 346; Toledo, W. & W. R. Co. v. Harmon, 47 Ill. 298; Hahn v. S. P. R. Co. 51 Cal. 605; 1 Thomp. Neg. 351, and cases cited in the notes. Under the rule of law established in these cases- and many others that might be cited, it is very clear that the findings of the jury in this case are not unsupported by the evidence in the case. By the Court.— The judgment of the circuit court is affirmed.