Appellant and his wife sued respondents for damages for injuries received from falling under and being dragged or pushed by one of the trains of respondent railroad company at a highway crossing at Drummond. Mr. and Mrs. Dedman were joint plaintiffs in the action for her injuries. Dedman sued alone for his injuries. The cases were consolidated for trial and the jury returned verdicts against appellant and his wife and for respondents. The husband's case alone was appealed.
Two grounds of negligence were alleged in the complaint: First, that the respondent railroad company had negligently piled the snow at the crossing on the highway to an excessive depth, and that when the train in question came by, it caused the snow to give way and appellants to slip and slide under the train. The other ground was that respondent engineer was negligent in not more quickly stopping the train.
Appellant's first assignment of error is the trial court's action in overruling the following objection:
"Mr. ANDERSON: We object as incompetent, irrelevant and immaterial, calling for a conclusion of the witness, and invading the province of the jury."
to this question:
"Q. Was there anything that you know of you could have done with the engine, with the appliances at hand and under the circumstances, which you did not do, to stop it quicker?" relying on these authorities to support his contention that the question called for an opinion on the ultimate question the jury was called upon to decide. (Springfield Consol. Ry. Co. v.Welsch, 155 Ill. 511, 40 N.E. 1034; Bruggeman *Page 163 v. Illinois Central Ry. Co., 147 Iowa, 187, 123 N.W. 1007, Ann. Cas. 1912B, 876; Springfield Consol. Ry. Co. v. Puntenney,200 Ill. 9, 65 N.E. 442; Nosler v. Chicago, B. Q. Ry. Co.,73 Iowa, 268, 34 N.W. 850.) Other cases were cited but therein the questions asked were so different as not to be in point. For instance in Fogel v. San Francisco S. M. Ry. Co., 110 Cal. xvii, 5 Cal. Unrep. 194, 42 P. 565, and Jeffries v. SeaboardA.L.R. Co., 129 N.C. 236, 39 S.E. 836, the question was "anything done to save the child"; Louisville N. R. Co. v.Landers, 135 Ala. 504, 33 So. 482, involved delay injuring cattle. While the limited authorities above mentioned do support appellant with regard to this particular question, the better reasoned rule supported by authority is to the effect that the engineer of the locomotive involved in the alleged accident, that is the actor, the individual charged with negligence may testify as to whether he knew of anything else he could have done to stop quicker, such testimony being admissible on the ground that it calls for a statement of fact from the operator thereof with regard to the use of an instrumentality calling for skilled knowledge and is not a matter of general information, and though the ruling is in appellant's favor in Ingwersen v. Carr Brannon,180 Iowa, 988, 164 N.W. 217 at 226, the reasoning supports the admissibility of such evidence. (See, also, Davis v. Boston M. R. R., 75 N.H. 467, 76 A. 170; Paquette v. ConnecticutValley Lumber Co., 79 N.H. 288, 109 A. 836; Morrison v.Boston M. R. R., 86 N.H. 176, 164 A. 553 at 556; Champlinv. Pawcatuck Valley St. Ry. Co., 33 R.I. 572, 82 A. 481;Merrihew v. Goodspeed, 102 Vt. 206, 147 A. 346, 66 A.L.R. 1109; Garvey v. Ladd, (Mo.App.) 266 S.W. 727 at 732.)
Appellant calls attention to the rule at 1117 et seq., 66 A.L.R., when, however, those cases are carefully examined it will be found that where the question is confined to the stopping of the car or engine by the operator thereof, most of the authorities tend to support the admissibility of this evidence.
Appellant next assigns as error the action of the trial court in overruling the following objection to the testimony *Page 164 of the witness Barnes, called as an experienced engineer by respondents:
"Q. What, according to your experience, would you be able to do if when you were in that position you were looking backward from the cab and saw a person and had occasion to stop the train, what would you do to the train, and how long would it take you?
"Mr. ANDERSON: We object to that as incompetent, irrelevant and immaterial; speculative, and calling for a conclusion of the witness, and it is invading the province of the jury."
To get a proper perspective of this question and the objection and answer it is necessary to review somewhat in detail previous testimony given by witnesses of both respondents and appellant. In appellant's case in chief he called as a witness one Walter F. Dillon who was questioned as to his qualifications as an engineer and an air-brake expert, and who testified with regard to stopping a train somewhat similar to the one involved herein and under like circumstances as follows:
"Q. And from your study of air brakes and cars and engines, and from your experience with air brakes, would you state that you can give a reasonably accurate estimate of the distances a train could be stopped in?
"A. I would have to ask a few questions as I went along.
"Q. Well, perhaps I don't make myself very clear. I will withdraw that question, and ask it this way: From your experience, Mr. Dillon, and your study, do you consider that you can give a fairly accurate estimate of the distance that would be required of a certain train at a certain speed to stop?
"A. Yes, sir.
"Q. Now, we will assume, Mr. Dillon, that an engine, I think of the fifteen hundred class, the 1570, I believe is the number of the engine was, — and attached to that engine was a caboose, — a baggage car and coach, and assuming that the engine and cars were equipped with Westinghouse air brakes, that the brakes were in good working order, and the engine would start on a track slightly curving to the left, and from *Page 165 a standing start, — curving to the right, pardon me, — the track curving to the right and the engineer would start up that engine, there being snow on the ground but no particular amount on the rails, with perhaps a light snow falling at the time, — the engineer would start that engine and two cars and attain a speed of between four and five miles per hour, now in what distance in your opinion could that train be brought to a stop with an emergency application of the air brake and the application of sand?"
After various objections and remarks were interpolated the material parts of witness' testimony were as follows:
"A. If the engine was still working steam at the time it would take a distance approximately twenty-six to thirty feet to stop. If the engine was not working steam at the time he tried to stop, or started to stop, it would take a shorter distance, for this reason, — May I give the reason?
"Q. Yes; you may.
"A. For this reason, when he reaches over and shuts the throttle off the ports and pipes are full of steam, and an engine will make one revolution, and assuming the wheels to be five feet in diameter, it would be a little over fifteen feet the engine would travel with steam helping it along, in addition to the down grade. If the throttle was shut off and the steam was out of the ports and pipes, it would reduce the distance from thirty-five to fifty per cent in which the stop would be made. I don't know the conditions or anything."
"Q. Then what would be your best judgment as to the distance that engine and cars would move at between five and six miles an hour, — in what distance could it stop?
"A. Taking the statement that I made about the steam, I would say from twenty-six to twenty-eight, — well, with the down grade, possibly thirty feet. I wouldn't take into consideration the little down grade.
"Q. Now, is this what you mean, Mr. Dillon: If the steam was shut off before the brakes were applied, then the shorter distance would apply?
"A. If the drivers at that time would make one revolution the steam would be exhausted, — that would be fifteen *Page 166 feet, but you would have the impetus of the steam in the cylinders and pipes for the first fifteen feet of the twenty-six to thirty feet."
"Q. When and where did you last have occasion yourself to stop an engine, if at all, to stop an engine under the conditions that Mr. Bowen assumed in his question to you?
"A. Well, while I was on the Great Northern and Northern Pacific, when I would work on an engine in the shops, and I did work over practically every division of both of those roads, my duties called for me going out on the engine and testing it out myself and handling it. In that case, — in those cases I always handled the engine myself, stopping and starting on various trains, some passenger and some freight. Usually about every third day I would make a trip, round trip with some locomotive over the division on which it was working."
"Q. If you have four or five or six cars, passenger cars, attached to an engine going at five or six miles an hour, you can stop much more quickly than with two, can't you?
"A. I can't answer that question without being misleading. If the coaches are broke to the percentage they are supposed to be, it will stop with more cars quicker than it will with fewer cars, because they are broke with a higher percentage."
"Q. Then every second of time that elapsed you would go 9.76 feet? Is that right?
"A. Every second that elapsed?
"Q. You would go what, — yes.
"A. It would be just short of twelve feet in a second, 11.86.
"Q. Now, if you, — you are assuming, are you not, that if you were moving eight miles per hour on a dry rail and a level track, you would consume that distance in a second, aren't you?
"A. Yes sir.
"Q. Yes. And you are not assuming that a wet rail and a one per cent down grade would affect the situation?
"A. Yes, sir; every bit of down grade will change it. I am figuring on approximately level track. *Page 167
"Q. You have assumed approximately level track for your purposes?
"A. Yes, sir.
"Q. And you have assumed the rail to be sufficiently dry to not affect the braking effect?
"A. Not slide the wheels."
From the testimony of this witness it is apparent that time can be translated into distance and vice versa. The error complained of with regard to witness Barnes was that it detailed how long it would take to do certain specific, segregated and enumerated acts all leading up to and necessary to stop the train, which invaded the province of the jury. McAtee, the engineer of the train in question had testified as to the total length of time which would elapse in reaching for the throttle and brake valve, and the distance traveled in that length of time. Dillon stated as his conclusion that the train should have been stopped in 26 or 30 feet at a speed of four or five miles per hour and the engine working steam, but it was stopped in some 80 odd feet. What had to be done to stop the train was clearly a matter for someone who was skilled as an engineer or in the operation of engines to state. There was a sharp conflict between McAtee and Barnes on the one hand and Dillon on the other as to whether the train could be stopped quicker by putting it in reverse, leaving the throttle open and applying the brakes, or by applying the brakes and shutting the throttle. The form of the question propounded to Barnes was improper but the answer elicited was not prejudicial because if the distinction be made between the time Barnes could have done these things and the time a reasonably skilled man under the same circumstances could have done them, the distinction would be of little moment because the witness would have to arrive at his conclusion from observation of others, his own experience, or mathematical calculations, and it is apparent that all of the witnesses were talking about the same subject matter. Barnes divided the different actions up into their time elements, Dillon gave a composite picture of completed acts in terms of time and distance. The *Page 168 testimony of all these parties was not prejudicial. (52 C. J. 366, sec. 1946, and 52 C. J. 432, sec. 2013.)
Appellant urges that the court erroneously instructed in Instruction No. 11, that Mr. Dedman was responsible for or bound by the contributory negligence of his wife. Instruction No. 11 read as follows:
"No. 11. "You are instructed, gentlemen of the jury, that if you find that the plaintiffs of their own accord passed from the limits of the traveled road as it was then maintained by public authorities and needlessly stood beyond such limits, either for the purpose of boarding the train or any other purpose, and that in so doing they negligently subjected themselves to danger and such act either caused or contributed to their falling under the train, then you must render a verdict against the plaintiffs and in favor of the defendants, unless you shall further find that defendant's engineer was guilty of negligence under the doctrine of last clear chance, as hereinafter defined, and under that principle, could, in the exercise of ordinary care, have avoided injuring the plaintiffs, but failed to do so."
It will be noted that this instruction was in the plural and did not make the one bound by the other and is not subject to the construction placed on it or criticisms made by appellant. With regard to this instruction and instruction No. 12, appellant also contends that the court did not properly instruct that contributory negligence to defeat appellant's cause of action would have to be the proximate cause. Instruction No. 20 instructed the jury to consider all of the instructions together as a whole and with regard to the proposition that contributory negligence would have to be the contributing factor, the court fully instructed on this point as follows:
"No. 7. . . . . . . . . . . . . . .
"The burden of establishing contributory negligence by a preponderance of the evidence rests upon the defendants. This burden may be discharged but never shifted. You are *Page 169 instructed that the burden is upon the defendants under their charge of contributory negligence to prove not only that the plaintiff was negligent, but that such negligence of theplaintiff contributed to and had a causal connection with theinjury complained of.
"If, however, contributory negligence appears on the plaintiff's side of the case and from the plaintiff's witnesses, whether the same appears by direct examination or under cross examination, and from such testimony you find that there was contributory negligence in this case, as this term is hereinafter defined for you, then and in that event you are instructed that you should consider such defense even though no testimony was offered affirmatively by the defendant in the proof thereof.
"In this connection you are further instructed that contributory negligence means: Negligence as in theseinstructions defined, on the part of the plaintiff, whichhelped to cause or bring about the injury complained of." (Emphasis herein.)
"No. 8. "It is a general rule of law in this state that in an action to recover damages for personal injuries where contributory negligence is pleaded as a defense, the plaintiff cannot recover when it appears from the evidence either of the plaintiff or defendant that the negligence of the plaintiff wasa proximate cause of the injury notwithstanding the fact that the evidence may also show negligence on the part of the defendant.
"The rule above in a broader sense means that to prevent a recovery by reason of contributory negligence, the person injured must have been guilty of a want of ordinary care,and that such want of care was a proximate cause of the injury. The negligence or want of care, however, of the injured person need not be the sole proximate cause, for that would exclude all negligence on the part of the defendant, and there would be no room for the application of the rule of contributory negligence." (Emphasis herein.)
"No. 9. "Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action *Page 170 for such injury cannot be maintained if the proximate andimmediate cause of the injury can be traced to the want ofordinary care and caution in the person injured. This rule is subject to this qualification, viz.: That the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might by the exercise of reasonable care and prudence have avoided the consequences of the injured party's negligence.
"So, in this case, if you find from all the evidence, facts and circumstances in the case that the engineer saw the plaintiffs at the time they were falling toward or under the train, and said engineer could by the exercise of reasonable care and prudence have stopped the train sooner than he did, and if you further find that the plaintiffs were injured by reason of the engineer not stopping said train sooner, then it would be your duty to find for plaintiffs." (Emphasis herein.)
"No. 12. "The doctrine of last clear chance, as applied to the issues of this case, is based upon the principle that the defendants could, with the means at hand, in the exercise of ordinary care, have avoided injuring the plaintiffs after actually discovering their peril, but failed to do so, but are not liable otherwise.
"Under this principle or doctrine, if you find from the evidence that the plaintiffs were standing at the crossing not because their path was blocked by the train but for other purposes and in a dangerous position and but for which they would not have fallen upon the track or under the train, then the only duty devolving upon either of the defendants was for the engineer to act as promptly as a reasonably careful and prudent man would have done with the appliances at hand and under the conditions surrounding him in an attempt to stop the train after discovering that the plaintiffs or either of them had fallen, and if you believe from the evidence that want ofordinary care of the plaintiffs in any material degree causedor contributed to their falling on the track or alongside the cars, and that the engineer, as soon as he discovered their peril acted as *Page 171 promptly and effectively, and as a reasonably careful and prudent man would have acted under the circumstances and with the appliances at hand and under the conditions surrounding him, you must render a verdict against the plaintiffs and in favor of the defendants." (Emphasis herein.)
The last assignment of error is to the effect that the court erroneously instructed the jury verbally and that the substance of the instruction so verbally given was erroneous in that it required that any verdict given should be against both defendants. The record disclosing the situation complained of is as follows:
"The COURT: Mr. Anderson, Mr. Thompson inquired as to whether or not the instructions covered the question as to whether or not if a verdict were returned against the defendants that it must be returned against both defendants? That is correct, is it?
"Mr. THOMPSON: That is correct.
"The COURT: Let me see if I can say the same thing again. I told the jury that it could return a verdict against the railroad company alone, if it found that the injuries were caused by the condition at the crossing. If, however, the verdict were based upon the actions of Mr. McAtee, the engineer, under the doctrine of the last clear chance, the verdict would have to be against, — or should be against both defendants.
"Mr. ANDERSON: Well, I don't know about requesting instructions verbally that way, but apparently that is what Mr. Thompson has done. I would like for the Court to tell the jury that the verdict may be against one or both defendants on either theory, and I think that is the law. The liability is joint and several.
"The COURT: I will consider that. You understood the last statement I made, gentlemen?
"JURORS: Yes."
Nothing further appears.
Referring to the written instructions which respondent at least indicates were the ones involved, Instruction No. 9 was quoted above. It will be noticed that the second paragraph of this instruction referred to the stopping of the *Page 172 train by the engineer but did not limit the finding of the jury to a verdict against him, merely said that the jury should find for plaintiffs.
In Instruction No. 10 the middle paragraph authorized the jury to find for the defendants although in one clause the singular "defendant" is used. The last paragraph in this instruction would seem to limit recovery against defendant railway company alone, therefore while the court asked the jury if it understood his last statement, it is not clear whether the court meant by this statement merely an amplification or clarification of the written instructions already given or whether he intended thereby to give an additional statement of law. The record does not disclose what ruling or action of the court was objected or excepted to or will be deemed objected or excepted to, presenting an error for this court to review.
The judgment is therefore affirmed. Costs to respondents.
Budge, J., concurs.