52 N.W. 480 (Iowa 1892), Larkin v. Burlington, Cedar Rapods & Nprtjerm Railway Co.

Citation:52 N.W. 480, 85 Iowa 492
Opinion Judge:ROBINSON, C. J.
Party Name:RACHEL C. LARKIN, Appellee, v. BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Appellant
Attorney:Wheeler & Moffit and S. K. Tracy, for appellant. R. G. Cousins and Chas. A. Clark, for appellee.
Judge Panel:ROBINSON, C. J. ROTHROCK and KINNE, JJ., concur in the result.
Case Date:May 23, 1892
Court:Supreme Court of Iowa
 
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Page 480

52 N.W. 480 (Iowa 1892)

85 Iowa 492

RACHEL C. LARKIN, Appellee,

v.

BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 23, 1892

Appeal from Cedar District Court.--HON. JAMES D. GIFFEN, Judge.

ACTION to recover damages for personal injuries alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

Reversed.

Wheeler & Moffit and S. K. Tracy, for appellant.

The ordinance was not shown to have been published in a newspaper, nor in book or pamphlet form. The evidence discloses that it was not so printed, and was read to the jury from the original manuscript, as kept by the clerk of the town. So no presumption of publication can be indulged, such as would be if it had been published in a book or pamphlet. The ordinance is one of a general and permanent nature, and therefore it is essential to its validity that it be shown to have been published in a newspaper or in pamphlet form in order to be competent as evidence; and it was incompetent as such until one of those facts was established. Code, sections 661, 669, 672. Implications will not be permitted to overturn these express provisions, nor will presumptions as to performance of duty by the officers of a town, obtain to override such statutes. By the pleadings, the defendant expressly denied that these statutes had been legally adopted, as the law requires. Where the statute expresses when the presumption will be indulged as to a fact, we insist that such expression excludes other presumptions of that fact. So that if the statute presumes a publication in a newspaper, from the fact of its being printed in pamphlet, then the existence of the pamphlet must be shown to justify the presumption of publication, without other evidence. Hence the burden was on the plaintiff to show one of these facts. The pivotal question in the case is whether the negligence of the boy driver, if any, was imputable to the occupants of the buggy. Whether the negligence of the driver is imputable to the plaintiff depends on his or her right to direct, order or control the driver, or whether the parties are engaged in a common enterprise; both of which relations we contend existed under the facts of this case. Nisbet v. Garner, 75 Iowa 314. The plaintiff under this contract of hiring was not obliged to remain a passive passenger such as exists where one is seated in charge of a public carrier in an omnibus, hack or car. The driver under the circumstances at bar is to be considered as much the servant of the plaintiff in doing this driving for her as if he had been employed by her to do any other kind of work which she could direct him in. His negligence therefore in doing her work was imputable to the plaintiff, and if he negligently drove in front of this approaching train, then such act of carelessness must be ascribed to her, and she ought not recover. Brickall v. N. Y. Cent & H. R. R. Co., 24 N.E. 449.

R. G. Cousins and Chas. A. Clark, for appellee.

The ordinance in question was read in evidence from the original ordinance book of West Liberty. Section 492 of the Code provides that, "It shall be deemed a sufficient defense to show that no such publication was made." The statute thus, in as plain terms as possible, makes the ordinance itself presumptive evidence of its publication, and throws upon the defendant the burden of showing no publication has been made, if that is relied upon to establish the invalidity of the ordinance. This is in accordance with familiar rules of law which obtain in the absence of any such statutory provision. The law requires ordinances to be published, and the presumption is that all public officers discharge their duties. City of Louisville v. Hyatt, 1 B. Mon. 180; Mussey v. White, 3 Me. 200; State v. Young, 2 N. H, 310; Goff v. Lamb, 12 Me. 312; Inhabitants v. Root, 18 Pickering, 138; Cobley v. Young, 15 N.H. 493; Schermerhorn v. Talman, 14 N.Y. 93; Jackson v. Sheffer, 11 Johnson, 317; Hartwell v. Root, 19 John. 343; King v. Queston, 4 Ad. & Ell. 667; Freeholders v. State, 24 New Jersey Law, 718; Aiken v. Iron Works, 43 Georgia, 464. This court has decided the precise question under consideration, in a case where an ordinance was given in evidence in a criminal prosecution, as found in the ordinance book of a town, without proof of publication. State v. King, 37 Iowa 469. It is true that in that case no objection was made, when the ordinance was offered, to the effect that publication was not shown. But the rule that objections not raised in the court below will not be considered in the supreme court, does not apply in criminal cases. State v. Lundermilk, 50 Iowa 795; State v. Barlow, 50 Iowa 701; State v. Potter, 28 Iowa 554. In a subsequent case this court said: "The ordinance being found in the proper record of the town in its form as published, it was at least prima facie...

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