Anderson v. United States Railway Administration

• Decision Date: 08 January 1924
• Docket Number: 35545
• Citation: 196 N.W. 584,197 Iowa 1
• Parties: OSCAR ANDERSON, Appellant, v. UNITED STATES RAILWAY ADMINISTRATION et al., Appellees
• Court: Iowa Supreme Court

196 N.W. 584

197 Iowa 1

OSCAR ANDERSON, Appellant, v. UNITED STATES RAILWAY ADMINISTRATION et al., Appellees

No. 35545

Supreme Court of Iowa, Des Moines

January 8, 1924

Appeal from Benton District Court.--JAMES W. WILLETT, Judge.

ACTION to recover damages to plaintiff's automobile resulting from a collision between the automobile, operated by plaintiff's wife, and one of the trains of the Chicago Rock Island & Pacific Railway Company while under control of the director general of railways. The jury returned a verdict for the defendant. From a judgment thereon the plaintiff appeals.--Reversed and remanded.

Reversed and remanded.

Kirkland & White, for appellant.

J. G Gamble, R. L. Read, A. B. Howland, and G. W. Burnham, for appellees.

VERMILION J. ARTHUR, C. J., EVANS, PRESTON, STEVENS, and FAVILLE, JJ., concur.

OPINION

VERMILION, J.

This is the second appeal in this case. The opinion upon the first appeal will be found in 193 Iowa 1041.

The collision occurred at a point where the railway track crosses a highway leading into the town of Garrison. The negligence alleged, so far as the question presented on this appeal is concerned, was that the employees operating the train, in approaching the crossing, failed to blow the whistle or ring the bell or give any signal of its approach.

Complaint is made of certain of the instructions of the court. After stating the issues as made by the pleadings, the court in the fourth instruction said:

"The material allegations of plaintiff's petition which must be so established are: (1) That the defendant was negligent in some one or more of the particular acts of negligence alleged which are herein submitted to you. (2) That the damage to plaintiff's automobile was the proximate result of such acts of negligence. (3) That the driver of the car, Myrtle Anderson, was not guilty of contributory negligence on her part. (4) The damage, if any, to which the plaintiff is entitled."

The sixth instruction is as follows:

"The particular acts of negligence alleged in plaintiff's petition herein submitted to you are: (1) That the defendant, by his employees, in approaching said railroad crossing, failed to ring the bell or give any signal of the approach of the train to said crossing, at and before the accident, resulting in the injury to property complained of by plaintiff in said petition."

In the seventh instruction, the court, after quoting the substance of the statute requiring the blowing of the whistle 60 rods before a road crossing is reached, proceeds:

"But within the limits of towns, the sounding of the whistle may be omitted. (It will be observed that it was optional in this case for defendant to sound the whistle or not.) Failure to sound the whistle is not an act of negligence."

The tenth instruction is as follows:

"You are instructed that the accident involved in this case occurred within the limits of the town of Garrison. The law requires that within the limits of towns the bell shall be rung when a train approaches a crossing, and that the blowing of the whistle may be dispensed with. It is, therefore, not an independent act of negligence for the defendant to omit the blowing of the whistle. However, within a town where the crossing is a dangerous one, where the blowing of the whistle or some other warning should be given, to prevent accident, and the failure to do so contributes to the proximate cause of the accident, such failure may be considered by the jury, as an item in connection with all the evidence and surrounding circumstances, in arriving at their verdict."

The plain effect of these instructions was, we think, to take from the jury all claim of a right to recover upon the allegation that the whistle was not sounded and that a failure to sound it amounted to negligence.

Negligence is always predicated upon duty. It can only arise upon a failure to perform some duty that one person owes for the safety or in the interest of another. Judge Cooley defines negligence as:

"The failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury." Cooley on Torts 1324.

"The first requisite in establishing negligence is to show the existence of the duty which it is supposed has not been performed." Cooley on Torts 1410.

The same thought has been thus expressed:

"Of course there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative, and can have no existence apart from some duty expressly or impliedly imposed. In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury." West Virginia C. & P. R. Co. v. Maryland, 96 Md. 652 (61 L.R.A. 574, 54 A. 669.)

The duty may exist by reason of statute, or it may arise form the relations of, or the circumstances surrounding, the parties. These principles are, of course, elementary. The duty that arises from the circumstances surrounding the parties is no less a duty than one imposed by statute; and the failure to perform the one is as much an act of negligence as is the other. There may be less certainty about the existence of the duty in the one case than in the other, but, the duty once established, the effect of a failure to perform it is the same.

There is no statutory requirement that those operating a railway train shall, within the limits of a city or town, sound the whistle, on approaching a street crossing; and, so far as the statute is concerned, a...