Railway Co. v. Moreland. 3. EVIDENCE NOT OBJECTIONable as Opinion Evidence. It is competent for the foreman of a gang of section men to testify that the men, while at work on the track, were safe, or whether the ice in falling could have reached them. Such testimony is not objectionable as opinion evidence. 4. SECTION Boss REPRESENTS RAILWAY COMPANY, The negligence of a section boss in charge of a gang of section men is the negligence of the railway company. 5. REPETITIONS IN CHARGE TO JURY. A charge which correctly submits the case to the jury is not erroneous by repetitions unless they are clearly unnecessary and made for the purpose of emphasis or to influence the decision. If the parties desire more specific instructions upon questions complained of, requests should be presented, and in the absence of such requests the objections are not available on error. 6. ARGUMENT AS TO SPECIAL REQUESTS IN PRESENCE of Jury. Where special findings, under Sec. 5201, Rev. Stat., are requested, it is the right of counsel upon the other side to make any argument which they see fit, or which the trial judge is willing to hear, as to the pertinency of the questions; and such argument may be made in the presence of the jury. 7. IMPROPER for CounseL TO SUGGEST ANSWERS. It is improper for counsel, after requests for special findings, under Sec. 5201, Rev. Stat., to make suggestions, under pretense of argument, as to how such questions should be answered. If any direction is given to the jury in respct to special and general findings, how they are to be taken up, etc., they should be instructed that they should find the facts without any reference to who would be injured or helped thereby, and to then draw their conclusions by way of a general verdict from all the facts. 8. REQUESTS NEED NOT PRECEDE ARGUMENT. It is not necessary that the request for special findings, under Sec. 5201, Rev. Stat., should be made before argument; it is sufficient if made afterwards, when no further argument can be made except as to the propriety of the questions. 9. ANSWERS Suggested to IMMATERIAL QUESTIONS. Where it appeared that many of the questions involved in requests for special findings, under Sec. 5201, Rev. Stat., related to matters which became immaterial or irrevelant under the general charge, and it also appeared that other questions were properly answered, the reviewing court declined to disturb the judgment notwithstanding the fact that the answers to the other questions were suggested by counsel and that the jury obviously followed such suggestions. 10. Reversal AS AGAINST EVIDENCE REfused, Sec. 5306, REV. STAT. Where it appeared that a section hand was put to work at a point where, near the side of the track, ice had accumulated on a ledge, though without fault of the railway company, and that the employe, while at work, was safe from falling ice, but having stepped to the side of the track to avoid a passing train, was injured by ice which fell as a result of the jarring, such employe having previously suspected the danger, but having been informed by the foreman, after testing the ice, that it was all right, the reviewing court held the facts to be a slim foundation for a verdict against the railway company, but having once reversed a similar judgment in the same case, as against the weight of the evidence, declined to disturb the judgment in view of Sec. 5306, Rev. Stat., providing that "the same court shall not grant more than one new trial against the weight of the evidence against the same party in the same case," which, being passed after the cause of action arose, was not binding on the court, but was followed as an expression of legislative will. 11. SECTION 5306, REV. STAT., THOUGH NOT BINDING MAY BE FOLLOWED. Section 5306, Rev. Stat., providing that "the same court shall not grant more than one trial against the weight of the evidence against the same party in the same case," is not binding in cases which arose prior to its enactment, but the court may be governed thereby as an expression of legislative will. Harrison Circuit Court. 12. VERDICT NOT EXCESSIVE. A verdict for $2,500, in favor of a section hand, for the loss of an eye, accompanied by much suffering, is not excessive. Burrows, J. This case comes into this court upon a petition in error from the court of common pleas. Moreland recovered judgment in the court of common pleas against the railway company for $2,500, as his damages for an injury that is alleged to have been sustained while working as a trackman for the railway company, on February 1, 1891. At the time of his injury, he was working in a cut just at the west end of what is known as the Bowerston tunnel. This cut is said to be about eighty feet deep. Mr. Solomon Friend was the boss of the section and Mr. Moreland was one of the section hands. At the time of the injury, Mr. Friend. the section boss, called upon Mr. Moreland to come to assist in tamping dirt about ties. The place where he was called to work was opposite an accumulation of ice that was hanging upon the rocks some ten feet distant from the side of the track. It appears from the evidence that there was no ice higher in this cut than about twenty feet from the level of the track, and that it extended from that height of twenty feet above the track towards the ground, some ten or twelve feet, leaving a space of some eight feet below that was free from ice, or, at least, from any dangerous accumulation of ice. The undisputed facts show that while Moreland was thus at work, the train approached from the west, going at a slow pace, some six or eight miles an hour, and that when the train was near to him, he stepped off upon the side of the track next to this hanging ice; that while standing there, during the passage of the train, a large piece of ice fell, threw him to the ground and injured his eye and otherwise bruised and injured him; that there was a double track there, or they were just putting in a double track. The distance between the walls of this cut as shown by the record and considering that two tracks were placed in there, and the distance being given from the track at which he was at work to the wall, it is quite evident that it was something over thirty feet in width, the space, I mean, between the two walls of the cut. The negligence alleged against the company, which was submitted to the jury for its determination as having some proof to sustain it, was, that the railway company had carelessly placed the plaintiff below at work at a place of danger, known by the company to be a place of danger, and yet known by the plaintiff below to be dangerous, and that when the plaintiff below, having some suspicions as to the dangerous character of that ice, made inquiries of the section boss, he was assured that it was safe for him to work at that place. The petition alleges that the plaintiff was free from fault. The railway company alleges several grounds of error for which it says that a new trial should have been granted by the common pleas court upon motion. It brings into this court the entire record of the proceedings and alleges that the court erred in not granting its motion for a new trial. First: There are some complaints made in respect to the admission and rejection of evidence, which we will notice. We notice only those Railway Co. v. Moreland. objections to the admission and rejection of evidence to which counsel for the plaintiff in error has called our attention. At page 19 of the bill of exceptions, it is said that the court erred in respect to this ruling: The witness upon the stand at the time is John Clark, a witness for the plaintiff. The conversation between the witness and the section boss is being narrated, something that occurred some two or three days before this accident. He says that he had then told the section boss that he, the witness, Clark, thought the ice was not safe and spoke of this accumulation of ice. There is no objection made to that. "Q. What did he say to that? A. I don't just remember what he said. "Q. Did he make any reply? A. I don't remember whether he did or not. "Q. I will ask you directly this question, whether or not he said to you to never mind or anything of that kind? "Question objected to by defendant. "Court: I understand the rule to be that his memory may be retreshed by a question of that kind. "To this ruling of the court the defendant then and there excepted. "Q. I ask you then to refresh your memory and state to the jury whether or not he replied to you to never mind? "Question objected to by defendant; overruled; to which ruling of the court the defendant then and there excepted. "A. I don't just remember. I couldn't say whether he said that or not. I didn't pay very much attention to it after I told him." There are no comments necessary upon that. It is not necessary even to express an opinion whether the witness's memory might be refreshed in that way. It certainly was a matter largely within the discretion of the court whether that form of question was proper, but the answer elicited is not of the least prejudice or benefit to either party. The next alleged error of the court is on page 50, and this was the witness, Solomon Friend, called by the defendant below. He is inquired of in respect to what he knew of the condition of the ice: "Q. What was the condition of the ice, as far as you knew, at the place near where he went to work? A. The ice was, as far as I know, in a safe condition at that point, as much as any other place along the cut. "Q. You may state whether or not he was entirely safe at the place he went to work as against any ice that did fall there? "Question objected to by plaintiff. 'Court: That, I think, calls for a conclusion. He may state where the ice was, how far it was from the place he was at work. It seems to me that that is as far as he should go, at least now. "To this ruling of the court the defendant then and there excepted. "Court: I think you would be entitled to ask the witness whether the ice could have reached to where this man was at work. "Question re-read. "Court: Doesn't that call for an opinion from the witness? "Hollingsworth: The objection is withdrawn. "A. As far as the ice is concerned where he was working he was perfectly safe." Harrison Circuit Court. Reading the entire answer of the witness, there seems to be no ground for complaint of the evidence as given. At page 51 there is another exception in the examination of this same witness: "Q. What is the customary way for men to do when tamping track or surfacing, as you call it, and the train comes along, what did they usually do? A. We stepped back clear of the danger out of the way the train. If there is any danger any place they are supposed to look out for themselves. "Plaintiff moves the court to strike out the answer; overruled; plaintiff excepts. I am "Q. Do you know of any custom by which men who are surfacing track are instructed where to go upon the approach of the train? A. There isn't any instructions. They are to govern themselves. supposed to look out for myself and they are to look out for themselves. "Latter part of answer stricken out." There is no objection to it being stricken out and it is impossible to say whether the defendant didn't get all that he asked for, or all that he is entitled to. Now at page 63 in the re-examination of Mr. Friend: "Q. Was there anything that you could know other than any other workman working there knew? "Question objected to by plaintiff. "Court: I think he has been examined fully upon the subject. "To this ruling of the court the defendant then and there excepted." That is the only exception and I think the court was correct. All that he knew about it, and all that he knew the plaintiff knew about it, had already been given to the jury. The next exception is to the charge of the court. There are but two exceptions to the charge, page 98. The first is, that the court refused to instruct the jury to return a verdict for the defendant, to which exception was taken. We think the court was right in that ruling. There is another exception which I will read: "Defendant excepts to the instruction given by the court as to the negligence of the section boss being the negligence of the company." It was given by the court, that under the circumstances, he represented the company, and in that we think the court was right. As far as his jurisdiction went he stood there for the company. The real objection to the charge is made, that there was a repetition of the proposition that the negligence of the defendant consisted particularly and especially in putting the plaintiff below at work in a place that was dangerous in this, that if a train should come along, as trains were liable to come along at any time, and he should leave his work to avoid the passing train, that he would naturally step into the vicinity of this hanging ice, which was dangerous; therefore he was put into a place of danger, of unusual danger, to perform his duties as trackman without any knowledge on his part of its dangerous character, and knowledge on the part of the company that it was dangerous. We think the court submitted the proposition correctly and we are not able to see that it was repeated unnecessarily for the purpose of emphasis or for influencing the decision of the case. If the defendant below desired the court to more particularly state to the jury in his charge the necessity of knowledge on the part of the railroad company or that the condition of things was such that they, in the Railway Co. v. Moreland. exercise of ordinary care, ought to have apprehended the fall of this ice, and those things that constituted the negligence of putting him at work there, then counsel for the defendant should have asked the court to charge upon this proposition. No such request was made and we find no error in the charge of the court as made. Another alleged ground of error is, that counsel for the plaintiff was permitted, by way of argument, as it is said, or conversation, to converse with the jury, or argue to the jury, with respect to the answers that would be suitable ones to return to the special verdict. It is called by counsel for the plaintiff in error, instructions of the jury by counsel. This is rather a novel proceeding to me and we have been referred to no authorities of any court in this state or elsewhere upon the question. The law regulating special verdicts is found in Sec. 5201, Rev. Stat., as amended in 1894. "In all actions the jury, unless otherwise directed by the court, may, in its discretion, render either a general or special verdict; but the court shall, at the request of either party, direct them to give a special verdict in writing upon all or any of the issues, and in all cases when requested by either party, the court shall instruct the jurors, if they render a general verdict, to find specially upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon, and the verdict and finding must be filed with the clerk and entered on the journal." It will be observed that it is not every question that may be asked that shall be submitted to the jury by the court, nor a special verdict required in respect to any question that counsel see fit to put in writing and hand to the court; but it is only upon any or all of the issues of fact. Whenever counsel ask the court to have any particular issue of fact or all of the issues of fact found specially by the jury, it is the duty of the court, under this statute, to direct the jury to so find. The question then, is whether a party requesting the court to have a special finding of the iacts of a case, is subject to criticism before the jury for having done so; consequently, whether the counsel upon the other side have a right, under the pretense of argument of the case, to suggest to the jury how they can answer the special questions so as to make it conform to their side of the case. We are of the opinion that it was the right of the counsel upon the other side to make any argument they saw fit to the court, or that the court was willing to hear, as to the pertinency of these questions; that might be done in the hearing of the jury. In this case it would have been entirely proper for counsel to have submitted to the court that several of these questions did not call for a special finding as to any fact that was in issue in this case. It is not known, of course, until the court charges the jury, which of the questions will be submitted for them to answer as a special verdict or whether any of them will be submitted. It is difficult to see how it is a question of specific direction or suggestion to the jury of how they had better answer these questions. We think counsel have no such right to make suggestions as to how they had better answer the questions. How the facts are and what the evidence shows with respect to those facts, is a matter for discussion and argument. It is a fact that may be urged upon the jury as being proved that the legitimate inference from these facts is as claimed by counsel; that the ultimate facts to be |