In view of the different positions which appear to be maintained by members of the court on the questions involved in this case, I think it proper that I briefly state the reasons for my concurrence in affirming the judgment.
The appellant presents seven specifications of error which may well be grouped under four headings:
1. Alleged error of the court in permitting defendant McAtee to testify, as to whether he knew of anything he could have done, with the engine and appliances at hand, more than he did do, to prevent the accident.
2. Permitting defendant to ask the witness Barnes what he would have done, under the circumstances, to stop the train, and how long it would have taken him to do so.
3. The alleged giving of an oral instruction to the jury.
4. The giving of instruction stating the conditions under which contributory negligence would prevent recovery.
These topics are all considered in the opinion of the Chief Justice and I shall, therefore, refer to them only in so far *Page 173 as necessary to illustrate my position and state my own views on the different questions.
It must be admitted that there is division of authority on both the questions here presented, on admissibility of evidence. It seems to me, however, that good reason exists for allowing more latitude to a defendant, or the party whose negligence, it is claimed, caused the accident, than should be allowed a stranger or bystander, in regard to giving testimony as to what he would have done under the same circumstances. The cases cited by the Chief Justice and Justice Morgan illustrate the diversity of holdings.
The defendant or actor has already been placed in the emergency and has acted. He saw the situation and experienced the circumstances surrounding it. He is now charged with lack of due care and prudence in his action. After he has related the conditions and situation under which he was bound to, and did, act, there can certainly be no harm or prejudice done to anyone, by allowing him to state, whether he knew of anything else that he could have done to avoid the accident. If he does not know of anything else, and the plaintiff thinks he knows of something, he can very well cross-examine him and bring out that fact.
On the other hand, it is quite a different thing to allow a bystander, a stranger, or even an expert answering hypothetically, to testify that he (the witness) would have acted so and so, and within what time he could have acted. The test is not, what the bystander or stranger would, or could, have done, under the same or similar circumstances, but rather, what a reasonably prudent man would do under like circumstances.
It was proper and, I think, necessary to have someone skilled and experienced as a locomotive engineer, to testify as to the time it would require for a competent and reasonably careful and prudent engineer to perform the several acts necessary to stop the train in the shortest possible time. Clearly a jury of laymen, unfamiliar with locomotives, would not know how long it would take, nor would they know the different things necessary to be done in stopping the train; nor would they know, with any degree of certainty, *Page 174 the effect of grades, number of cars in train, condition of track as affected by rain, snow or ice, and many other things that might materially affect the stopping of the train, and the length of time in which it could be done. It is, therefore, necessary, in most of this class of cases, to have the testimony of someone skilled and experienced in operating trains and locomotives. Its purpose, however, is not served and might often be defeated, by merely asking the witness how he would do the thing and how long it would take him to go through the various movements. He might be especially expert, skilled and apt at the work or he might be the reverse of some or all of these qualifications.
I am led to the conclusion that the court erred in permitting the witness Barnes to answer the question, as stated in the opinion of the Chief Justice, and that such a line of examination should not be permitted of a third party or stranger to the case.
An examination of the cases, cited by appellant on this issue, will disclose that many of them are cases where the objection to the question was sustained, and the contention was made on appeal that the court erred in not allowing the answer. On appeal the various courts, from which these cases come, held that the ruling of the court was not erroneous. For illustration of the cases above referred to, cited by appellant, where objections were sustained, see Nosler v.Chicago, B Q. Ry. Co., 73 Iowa, 268, 34 N.W. 850, Fogel v.San Francisco S. M. Ry. Co., 5 Cal. Unrep. 194, 42 P. 565, and Gavisk v. Pacific R. Co., 49 Mo. 274. These rulings, however, are not necessarily the equivalent of holding, that it would have been prejudicial error to allow the question to be answered.
In some of the cases cited the question was put in such form as to demonstrate on its face, that a witness could not properly answer it. Such was the case of Bruggeman v. IllinoisCent. R. Co., 147 Iowa, 187, 123 N.W. 1007, Ann. Cas. 1912B, 876, where the question asked was:
"Q. Could it have been stopped by any human agency in any quicker time on that particular day than it was stopped then?" *Page 175
Objection was overruled and the ruling was held erroneous.
On the other hand, I do not think the action of the court in this case was prejudicial to the plaintiff's rights, for the reason that the answer, and the cross-examination following it, showed his answer to be chiefly speculation and guess work on the part of the witness. The answer to the question was as follows:
"A. Well, you are looking back, you are watching an object, and you, — in this position you are away from your throttle, and you have got to turn around and grab the throttle, and your throttle and brake valve are on the same side, and you have to shut off your throttle and go to emergency with your brake valve. It would take four or five seconds before you could possibly get the, — get to the brake valve. Then after you get to the valve, the brake valve, it takes about two or three seconds before you would get the brakes applied."
This answer comprised the entire testimony of the witness in response to the objectionable question. This was immediately succeeded by the following cross-examination:
"Q. Suppose the engineer didn't shut off the throttle, how much difference would that make?
"A. That would make considerable difference.
"Q. How much difference?
"A. I don't know.
"Q. You, as an expert, don't know that?
"A. I am not an expert.
"Q. Oh, you are not an expert?
"A. No, sir.
"Q. Then why are you testifying how long it takes to do this, if you are not an expert?
"A. Because you can't tell with it working steam as to how quick you can stop the engine.
"Q. Then your answer is the purest sort of a guess, isn't it?
"A. No, sir.
"Q. What is it, then?
"A. I know, by actual experience. *Page 176
"Q. You know by actual experience what?
"A. Yes, sir.
"Q. What?
"A. How soon I can stop a train.
"Q. Suppose you didn't shut off the throttle, how soon could you stop?
"A. It depends on the grade and snow.
"Q. At the grade you have been testifying about, and the snow you have been testifying about?
"A. Conditions vary.
"Q. Well, you have been testifying about the grade up there at Drummond, haven't you?
"A. Yes, sir.
"Q. All right. You are on the grade at Drummond, now, and you don't shut off the throttle, how long will it take?
"A. Well, I couldn't say as to how long it would take."
Clearly the foregoing testimony could not have prejudiced any substantial right of the plaintiffs, and the judgment should not be reversed on the grounds of the improper allowance of the answer to the question propounded by defendants' counsel.
On the subject of giving an oral instruction to the jury, I find nothing in the record which would constitute an error or amount to an adverse ruling. The record of everything that occurred in this connection is set forth in the opinion of the Chief Justice and, as I read and understand it, the trial court did not pretend to give any oral instruction but rather repeated from memory the substance of a written instruction already given. Counsel for appellant appears to have acquiesced in the request, that the judge tell the jury whether they might return their verdict against one or both defendants; except that he contended that the verdict might be returned "againstone or both defendants on either theory," which had been stated by the court. I find nothing in this record that could be termed an erroneous ruling or be prejudicial to appellant.
Referring to the instruction (No. 11) quoted in the opinion of the Chief Justice, it seems to me that, if read and *Page 177 accepted literally, it is more favorable to appellant than he was entitled to have given to the jury. It should be noted that, when referring to the plaintiffs, it is at all times in the plural and requires that the contributory negligence, necessary to defeat a recovery, must be the negligence ofplaintiffs and not merely one of the plaintiffs. It reads in substance:
"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 . . . . and . . . . they negligently subjected themselves to danger . . . . then you must render a verdict against the plaintiffs and in favor of the defendants, unless. . . . ," etc.
Now, it will be seen, that this instruction, as given to the jury, required them to find that both plaintiffs had been guilty of contributory negligence, in order to constitute a defense on that ground. Whereas, in fact, the contributory negligence of the husband alone would have been sufficient to defeat his right of recovery.
It is true that in some other instructions the "plaintiff" is referred to in the singular, but in those instructions the court is discussing abstract questions of law, dealing with the general subject of negligence and contributory negligence, proximate cause, due diligence, etc.; but Instruction No. 11 is the only one dealing specifically with the question as to the character, manner and extent of contributory negligence and the circumstances under which it must occur, in order to defeat a recovery on that ground. I am, therefore, forced to the conclusion that Instruction No. 11 stated the law more favorably to plaintiffs than they were entitled to have it given, and was not prejudicial to their rights.
I concur in an affirmance of the judgment on the specific grounds and for the reasons herein stated.
Budge, J., concurs.