Pershing v. Chi., B. & Q. R. Co.
| Citation | 71 Iowa 561,32 N.W. 488 |
| Parties | PERSHING, ADM'R, ETC., v. CHICAGO, B. & Q. R. CO. |
| Decision Date | 21 March 1887 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from circuit court, Polk county.
On the eighth day of February, 1885, a passenger train on defendant's railway was derailed, as is supposed, by a broken rail, at a point near a bridge over a gully or ravine. When the train went upon the bridge, the wheels on one side passed outside of the guard-rail, and the bridge was broken down, and the car in which plaintiff's intestate was riding as a passenger was thrown into the gully or ravine, and she received injuries which caused her death. This action was brought for the recovery of the damages sustained by her estate. There was a verdict and judgment for defendant, and plaintiff appeals.Parsons, Perry & Sherman, for appellant.
J. W. Blythe, H. H. Trimble, and Runnells & Walker, for appellee.
It is alleged in the petition that the injury was caused by the negligence of the defendant, and that its negligence consisted (1) in the manner in which its track and bridge was constructed and maintained, the latter being insufficient; and (2) in the manner in which the train was being run at the time of the accident. The evidence is not contained in the abstract, but it is recited in the “bill of exceptions” that plaintiff introduced evidence tending to prove the occurrence of the accident and injury, and that the deceased was not guilty of any contributory negligence, and that the accident was caused by the negligent manner in which the track and bridge were constructed and maintained, and the negligent manner in which the train was being run at the time, and by the insufficiency of the bridge, and that he then rested his cause; that the defendant thereupon introduced evidence tending to prove that its road, and said bridge and its rolling stock, and its servants and agents, were in all respects such as were accepted by, and were in general use, and found to be sufficient and approved by, the best and most skillfully managed railroads of the country, doing a like business under like circumstances with it; and the selection of its materials, the plan and construction of its roadway, track, bridges, and rolling stock, and the selection of its employes, servants, and agents, and the inspection and repairs of its road and machinery, and appliances connected with the operation of the road, were such as the best, most carefully, prudently, and skillfully managed railroads in the country exercise and require, doing a like business, and under like circumstances; and that the bridge went down, and the car in which the intestate was riding was thrown into the ravine, by reason of the derailment of the train at a point 378 feet from the bridge; that the ties, rails, and fastenings, and the ballast thereunder at that point, and between there and the bridge, were in all respects such as had been found sufficient by the most skillfully and prudently managed railroads of the country, doing a like business, under similar circumstances; that the same were, from time to time, and as frequently as by other railroads, inspected in the usual way of inspecting such appliances, by the most carefully and prudently managed railroads of the country, by an employe of competent skill and experience in such matters; and that the rails and joint fastenings appeared sound, and all their supports sound and secure; and that there were no flaws or defects visible that could have been discovered by such inspection; and that the shock or blow which caused the bridge to fall was of unusual and extraordinary violence, and that the bridge would not otherwise have gone down, and that the guard-rails on the bridge were such as were usually and customarily used by the most skillfully managed railroads of the country, under like circumstances.
In rebuttal, plaintiff introduced evidence tending to prove that the bridge was not sufficient, either in plan or construction; that the guard-rails were not of sufficient size, and were not properly placed or fastened; that the joint fastenings at the point at which the derailment occurred were insufficient, and were broken prior to the occurrence of the derailment; and that the break might have been discovered by a careful and proper inspection, before the passage of the train.
The errors assigned all relate to the instructions given by the court to the jury:
1. In the seventh, eighth, and thirteeth instructions the jury were told, in effect, that the burden was on plaintiff to show that the injury was caused by the negligence of the defendant; but that, if he had established that the accident was attended by circumstances showing that it was caused by defective construction of the roadway, bridge, track, or the fastenings of the rail at the point where the derailment occurred, or its train or cars, or by the management or running of the train, this would raise a presumption of negligence, and would cast upon defendant the burden of proving that it was not caused by any negligence or want of skill on its part, either in the construction or maintenance of its roadway, track, or bridge, or in the management of the train, or the condition of the cars, but that this presumption extended only to those portions of the track, machinery, or bridge which the circumstances of the accident indicated were possibly defective, and it was not required to prove that nothing about its entire train and roadway were defective; and that the burden cast upon it by proof of the happening of the accident, and the attending circumstances, only required it to show that, as to the matters which the circumstances indicated were the cause of the accident and injury, it had exercised due care; and that it was not required to satisfactorily explain the reason of the breaking of the rail, and the derailment of the train, and the breaking down of the bridge, but was only required to prove that these things did not occur through any negligence on its part.
The point urged by counsel for appellant is that the instructions are erroneous,in that they limit the burden imposed upon defendant by the evidence of the occurrence of the accident, and the attendant circumstances, to prove merely that it had not been negligent in respect to those matters which the circumstances indicated were the cause of the injury. Their position is that the presumption which arises upon proof of the happening of the accident is not a mere presumption of negligence as to some specific matter, but is a presumption of general negligence on the part of the carrier; or, in other words, they insist that the presumption is that he is legally liable for the injury, and that this presumption can be overcome only by proof that it was caused by inevitable accident, and that it follows necessarily from this that he must account for the accident, and show that he was free from all negligence in the matter.
The rule which casts the burden of proof on the carrier is a rule of evidence having its foundation in considerations of policy. It prescribes the quantum of proof which the passenger is required to make in making out his case originally, and he is entitled to recover on that proof, unless the carrier can overcome the presumption which arises under the rule from the...
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