Larkin v. Burlington, Cedar Rapods & Nprtjerm Railway Co.
| Decision Date | 23 May 1892 |
| Citation | 52 N.W. 480,85 Iowa 492 |
| Parties | RACHEL C. LARKIN, Appellee, v. BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
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 admissible." Eldora v. Burlingame, 62 Iowa 35. That such presumption is fully authorized even where not required by statute as in this case, see, Bank v. Dandridge, 12 Wheaton, 64. In a subsequent case this court held that a newspaper, in which it was claimed that an ordinance had been published, "will be presumed to be a newspaper of general circulation for the reason that the presumption obtains that officers perform the duties with which they are charged." Incorporated Town of Bayard v. Baker, 76 Iowa 220. It is difficult to see how the question of the alleged negligence of the driver being imputable to the plaintiff, cuts much figure in the case. The whole doctrine of imputable negligence rests upon the case of Thorogood v. Bryan, 8 C. B. 114. That case never obtained any foothold in America. Nearly all American courts of the last resort have repudiated this doctrine and refused to follow it. Little v. Hacket, 116 U.S. 366; Dean v. Railway Co., 129 Pa.St. 514; Transfer Co. v. Kelly, 36 Ohio 86; Masterton v. Railway Co., 84 N.Y. 247; Dyer v. Railway Co., 71 N.Y. 228; Beck v. Railway Co., 13 S.W. 1055; Tollman v. Mankato (Minn.), 29 N.W. 317; Bennett v. Railway Co., 36 New Jersey Law, 225; Louisville v. Railway Co., 9 Bush (Ky.), 728; Holzab v. Railway Co., 38 La.Ann. 185. Scores of other American cases might be cited in hostility to Thorogood v. Bryan, but this court itself has repudiated the doctrine of that case, and has declared emphatically, "We think the doctrine is contrary to sound reason and well-settled legal principles." Nesbit v. Town of Garner, 75 Iowa 319. Thorogood v. Bryan, was not decided by an English court of appeals. Recently, in 1887, that case came before a court of appeals for the first time, and the doctrine was then squarely overruled in England, where it originated. The Bernina, 12 Probate Div. 58. The cases above cited do not hold or intimate that there is any difference between a driver of a public hack and the driver of a livery team which is let for hire precisely as the public hack is. In principle there can be no difference. The private carrier is liable for want of reasonable skill and care. The Margaret, 94 U.S. 497, and cases there cited. If the negligence of this private carrier combined with the negligence of the defendant, and produced the injury complained of, either one is liable to respond to the plaintiff in damages, and neither can shield himself or itself, because the other might be called upon to respond. To maintain the contrary rule would be to hold that one or both of two wrong-doers, who had inflicted an injury by their negligence upon an innocent party, and both of whom were liable, might escape by laying the blame upon each other, leaving the innocent party to fall between the two. Such is not the law. A recent case decides this exact question. Railway Co. v. Steinbrenner, 47 N. J. Law, 161. The law is also settled in the English courts that the hiring of horses, to be driven by a driver regularly in the employ of the person from whom the horses are hired, does not create the relation of master and servant between the hirer and driver. Quarman v. Burnett, 6 N. & W. 499; Lawgher v. Pointer, 5 B. & C. 547; Jones v. Liverpool, 14 Ob., 890. And this same rule is maintained as to the driver of a private carriage for hire in Michigan City v. Boecking, 122 Ind. 39; Town of Albion v. Hetrick, 90 Ind. 545; Railway Co. v. Spencer, 98 Ind. 186; Town of Knightstown v. Musgrove, 116 Ind. 122. The true rule is that, "The only case where the so-called doctrine of identification or imputation can be applied, is where the passenger actually participates in the carrier's fault, as by urging him on, or by plainly manifesting approval of his course, and thus encouraging him. Bigelow's Leading Cases, 726, 729. This court has further repudiated the doctrine of Thorogood v. Bryan, in holding the negligence of a parent will not be imputed to a child under the parent's immediate control and supervision. Wymore v. Mohaska, 78 Iowa 396. This leaves the doctrine of imputable negligence in this state confined. First. To a case where three persons were engaged in a joint enterprise. That is, where the three hired a team without a driver and did their own driving. Second. To a case of a wife injured through the negligence of her husband, while under his immediate supervision and control. Nesbit v. Garner, 75 Iowa 318.
In October, 1888, the plaintiff engaged, at a livery stable in West Liberty, a team and driver to take herself and sister from that place to the home of their brother, several miles in the country. The driver furnished was a boy sixteen years of age, and the vehicle was a carriage which contained but one seat. That was occupied by the...
To continue reading
Request your trial