Given, C. J.
2 I. Plaintiff filed a denial of defendant’s abstract, an additional abstract, and a motion to dismiss the appeal and affirm upon the ground that a “full, complete, and correct abstract,” as required, was not filed, and because the abstract filed was not filed within the time required. Defendant moves to strike said additional abstract and motion because not filed in time. We will not extend this opinion by a discussion of these motions, further than to say that the defendant’s abstract is so far full and complete as that we should not dismiss or affirm upon the ground that it is not as required. As to the times of filing, neither party is within the rules; but,.as this was the subject of stipulation between them, they have no just cause for complaint on this ground. Both motions are overruled.
3 II. A brief statement of the facts will render clear the questions discussed: Plaintiff was in the employ of de'fendant, at the time he was injured, as a switchman or ear catcher in its yards at Muscatine. On the evening of October 16, 1897, he, in the line of his duty, attempted to uncouple two cars of the Burlington, [84] Cedar Bapids & Northern Bailway Company, that had'just been received in defendant’s yards. Those cars were provided with an appliance by which, by means of a lever, they could, when in order, he uncoupled without going between the cars. Plaintiff tried to uncouple with the lever, but, by-reason of the coupling being out of order, be could not thus draw the pin. Plaintiff, seeing this defect, and knowing that because thereof he could not draw the pin by rise of the lever, stepped between the moving can’s, and attempted to draw the pin with his hand. While walking along between tbe moving cars in this attempt, his left foot caught between the rail and an unblocked guard rail, and held him so that he was thrown down by the caí’, between the rails, and seriously injured. Plaintiff had been in the employment of the defendaxxt in its roundhouse at Eldon as a helper from in 1892 to October, 1896, and as a brakeman between Eldon and Bock Island from August 1 to October 14, 1897, at wbieh time he was assigned to duty as a switchman in the yards at Muscatine. He. worked as switchman the nights of the 14th and 15th, and up till 6 :50 x?. m. of the 16th, when he was injured. Amputation of his left leg was rendered necessary by reason of the injuries, and he suffered other injuries, the details of which xieed not he stated.
[85] 4 [84] III. Defendant’s first contention is that there is no evidence warranting a verdict for the plaintiff, for the reason that the evidexxce shows contributory negligence, and assxunption of the risk incidexxt to the unblocked guard rail. The court instructed that the defective condition of the lever was not of itself the immediate cause of the injuries, hxxt that they directly resulted from tbe condition of tbe guard rail; and the jury was told as follows: “Was tho defendant guilty of negligence in leaving the said space open and unblocked, and of such width that the foot of an employe might he caught and held in it long enough to sustain injury from a train in motion ? This is a question which you are to answer from the evidence before yon.” Plaintiff’s counsel insist [85] that this left the allegation that defendant was negligent in respect to the coupling to be considered. Surely it did, as an incident in the ease, but not as the proximate cause of the injuries. We cannot say, as a matter of law, that under the evidence plaintiff was guilty of contributory negligence, or that he assumed the risk incident to the condition of the guard rail. These "were questions for the jury, and, under the evidence relating to them, we should not interfere with their verdict on this ground.
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Given, C. J.
2 I. Plaintiff filed a denial of defendant’s abstract, an additional abstract, and a motion to dismiss the appeal and affirm upon the ground that a “full, complete, and correct abstract,” as required, was not filed, and because the abstract filed was not filed within the time required. Defendant moves to strike said additional abstract and motion because not filed in time. We will not extend this opinion by a discussion of these motions, further than to say that the defendant’s abstract is so far full and complete as that we should not dismiss or affirm upon the ground that it is not as required. As to the times of filing, neither party is within the rules; but,.as this was the subject of stipulation between them, they have no just cause for complaint on this ground. Both motions are overruled.
3 II. A brief statement of the facts will render clear the questions discussed: Plaintiff was in the employ of de'fendant, at the time he was injured, as a switchman or ear catcher in its yards at Muscatine. On the evening of October 16, 1897, he, in the line of his duty, attempted to uncouple two cars of the Burlington, [84] Cedar Bapids & Northern Bailway Company, that had'just been received in defendant’s yards. Those cars were provided with an appliance by which, by means of a lever, they could, when in order, he uncoupled without going between the cars. Plaintiff tried to uncouple with the lever, but, by-reason of the coupling being out of order, be could not thus draw the pin. Plaintiff, seeing this defect, and knowing that because thereof he could not draw the pin by rise of the lever, stepped between the moving can’s, and attempted to draw the pin with his hand. While walking along between tbe moving cars in this attempt, his left foot caught between the rail and an unblocked guard rail, and held him so that he was thrown down by the caí’, between the rails, and seriously injured. Plaintiff had been in the employment of the defendaxxt in its roundhouse at Eldon as a helper from in 1892 to October, 1896, and as a brakeman between Eldon and Bock Island from August 1 to October 14, 1897, at wbieh time he was assigned to duty as a switchman in the yards at Muscatine. He. worked as switchman the nights of the 14th and 15th, and up till 6 :50 x?. m. of the 16th, when he was injured. Amputation of his left leg was rendered necessary by reason of the injuries, and he suffered other injuries, the details of which xieed not he stated.
[85] 4 [84] III. Defendant’s first contention is that there is no evidence warranting a verdict for the plaintiff, for the reason that the evidexxce shows contributory negligence, and assxunption of the risk incidexxt to the unblocked guard rail. The court instructed that the defective condition of the lever was not of itself the immediate cause of the injuries, hxxt that they directly resulted from tbe condition of tbe guard rail; and the jury was told as follows: “Was tho defendant guilty of negligence in leaving the said space open and unblocked, and of such width that the foot of an employe might he caught and held in it long enough to sustain injury from a train in motion ? This is a question which you are to answer from the evidence before yon.” Plaintiff’s counsel insist [85] that this left the allegation that defendant was negligent in respect to the coupling to be considered. Surely it did, as an incident in the ease, but not as the proximate cause of the injuries. We cannot say, as a matter of law, that under the evidence plaintiff was guilty of contributory negligence, or that he assumed the risk incident to the condition of the guard rail. These "were questions for the jury, and, under the evidence relating to them, we should not interfere with their verdict on this ground.
5 6 [86]*867 [85] IV. The defendant offered to show that there were a large number of unblocked guard rails in its yards, at other points than Muscatine, along that part of the defendant’s road over which the plaintiff had worked. To this evidence the plaintiff’s objection was sustained. Defendant insists that it was admissible as bearing upon the questions of assumption of risk and contributory negligence, and cites Keist v. Railway Co., 110 Iowa, 32. In that case the plaintiff’s intestate was'injured by being brought in contact with a certain cattle chute, and it was held that evidence as to the construction of such chutes on the part of the defendant’s road over which the deceased had been employed was competent to be considered, as tending to show knowledge on the part of the deceased as to the proximity of such chutes. A noticeable distinction between the cases is that cattle chutes were perfectly open and obvious to brakemen in passing on their trains, while it was not so apparent whether or not guard rails were blocked. Surely brakemen passing at their posts on moving trains would not be likely to observe whether or not guard rails were blocked, and therefore we think there was no error in excluding this evidence as to the condition of guard rails ( in other yards than that where the plaintiff was injured. Plaintiff, having testified that he had a consultation with Dr. Huston about having another operation, was asked: “What does he advise with reference to it?” To this the defendant objected as incompe[86] tent and immaterial, and, the objection being overruled, the witnesss answered: “lie says he is afraid there will have to be another operation performed, before I will be able to wear the leg.” Later the witness stated, over defendant’s objection, as the reason why the doctor was not at the trial, that he was sick. Clearly, this was admitting hearsay testimony, and the mere fact that the doctor was sick did not render it the less objectionable. It is said the evidence was not prejudicial; but not so, for, if another operation might be necessary, it would certainly tend to enhance damages because of future pain and suffering. One Ham-sen, having testified that he took plaintiff’s shoe out of the guard rail after the accident, and as to Low it was fastened therein, and how guard rails are blocked, was asked, “Could this accident have happened if that had been done?” Defendant objected as incompetent, and, the objection being- overruled, the witness answered, “No, sir; it could not have happened.” While the answer is somewhat in the nature of an opinion, it is also a statement of a fact based upon his observation of the place, and his experience in withdrawing the shoe. , It was not possible for the witness to convey to the jury in words all the conditions as he saw them, and, that being so, it was competent for him to answer as he did. [87] the gross amount running through the probable duration of his life.” Defendant ashed an instruction to the effect that this expectancy of life does not necessarily apply to persons engaged in hazardous employments, but is based upon the observed expectancy among persons in ordinary pursuits, “'and yoii should bear this in mind in any consideration which you may give to said mortality table.” This instruction was refused. The instruction given makes the life tables conclusive as to “the age he would probably have reached.” This certainly is not the rule. “They are not conclusive upon the question of the duration of life, but are competent to be weighed with other evidence. The physical condition of the injured person at the time next preceding the injury, his general health, his avocation in life with respect to danger, his habits, and probably other facts, enter into the question of the probable duration of life.” Railway Co. v. Chambliss, 97 Ala. 171 (11 South. Rep. 897) ; Railroad Co. v. Putnam, 118 U. S. 445 ( 7 Sup. Ct. Rep. 1, 30 L. Ed. 257) ; Scheffler
[86] 8 [87]*879 [86] Y. The court instructed as follows: “If you find for the plaintiff, you will consider the age he would probably have reached if he had remained in good health, as ascertained by the tables of the expectancy of human life which have been introduced in evidence. He was, it appears, 23 years old at the time of the accident; and he would, according to the said tables, have lived 40 17-100 years longer, or to the age of about 63 years. You will also consider the extent to which his earning power as a laboring man would be lessened and diminished by the character and nature of his injuries; but, in ascertaining this amount, you will allow him the present worth of such earnings, rather than [87] v. Railway Co., 32 Minn. 518, 21 N. W. Rep. 711). We think the court also erred in limiting the extent of plaintiff’s earning power in the future to that of a laboring man. The instruction, construed according to common acceptation, must be understood to refer to his ability to earn by manual labor. He might be totally disabled from performing manual labor, yet be able to earn in other avocations. See Laird v. Railway Co., 100 Iowa, 336.
10 VI. Defendant insists that the issues were not clearly stated to the jury, and that the instructions are confused and complicated. This complaint is not without foundation. The petition alleges in detail as facts that from which the ultimate facts constituting the cause of action appear. The court, instead of stating the ultimate facts alleged, follows the petition in its numerous details, thus rendering the issues somewhat obscure. Notwithstanding the court withdrew the charge of negligence as to the condition of the coupling as a proximate cause of the injuries, yet a large [88] part of the instructions is devoted to stating that issue and the law pertaining thereto. It was unnecessary to have made any mention of that charge of negligence, or, if mentioned, it was sufficient to say that it was withdrawn from consideration. To include it in the statement of the issues, and to instruct upon it, as was done, surely tended to - confuse the jury. The defendant’s remaining contention is that the verdict is excessive. As, for the reason already stated, the judgment must be reversed, we forbear from expressing any opinion on this last complaint. — Reversed.
Thursday, October 24, 1901.
Supplemental Opinion.