Arnett v. Ill. Cent. R. Co.
| Decision Date | 23 February 1920 |
| Docket Number | No. 33128.,33128. |
| Citation | 188 Iowa 540,176 N.W. 322 |
| Parties | ARNETT v. ILLINOIS CENT. R. CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Black Hawk County; H. B. Boies, Judge.
Action for damages against the defendant railway company and its engineer on account of injuries received by a passenger as a result of a collision. There was a verdict in favor of the engineer and against the railway company. The latter appeals. Affirmed.George W. Dawson, of Waterloo, and Helsell & Helsell, of Ft. Dodge (W. S. Horton, of Chicago, Ill., of counsel), for appellant Illinois Cent. R. Co. and appellee Dubois.
Sager, Sweet & Edwards, of Waterloo, for appellee Arnett.
Plaintiff alleged in his petition that he and his wife boarded one of defendant's east-bound passenger trains at Iowa Falls on the morning of December 7, 1917, and that when the train reached Boyd, a passing station on defendant's line, located about seven or eight miles west of Cedar Falls, a collision occurred between the train upon which he was riding and a west-bound train, causing him to be thrown violently from his seat in the smoking compartment of the coach, breaking his right leg and inflicting other severe and painful injuries upon him. This action was brought against the railway company and the engineer of the west-bound train.
[1] The petition contained no allegations of specific acts of negligence, but charged that the collision “was due solely to the negligence and carelessness of the defendants.” The defendants moved the court to require plaintiff to set out in his petition the particular acts of negligence complained of. The overruling by the court of this motion is the first matter argued by counsel for appellant. To make out a prima facie case against the defendant railway company, plaintiff was only required to prove that he was injured, without fault upon his part, while a passenger upon the defendant's train, by a collision of said train, or other unusual occurrence. The prima facie case thus made raised a presumption that defendant was negligent, and cast upon it the burden of exculpating itself therefrom. Cronk v. R. R. Co., 123 Iowa, 350, 98 N. W. 884;Fitch v. Traction Co., 124 Iowa, 665, 100 N. W. 618;Dorn v. C., R. I. & P. R. R. Co., 154 Iowa, 140, 134 N. W. 855;Sever v. M. & St. L. R. Co., 150 Iowa, 664, 137 N. W. 937, 44 L. R. A. (N. S.) 1200;Weber v. C., R. I. & P. R. Co., 175 Iowa, 358, 151 N. W. 852, L. R. A. 1918A, 626;Basham v. C. G. W. R. Co., 178 Iowa, 998, 154 N. W. 1019, 157 N. W. 192.
[2] The facts constituting the negligence resulting in the collision were peculiarly within the knowledge of the defendant. Plaintiff was not bound to prove the particular acts of commission or omission upon the part of the employés of defendant which caused the accident, and was not therefore required to allege the same in his petition. The motion was properly overruled. Scott v. Hogan, 72 Iowa, 614, 34 N. W. 444;Gordon v. Railway Co., 129 Iowa, 752, 106 N. W. 177.
Counsel for appellant appeared in the court below for both defendants, and filed a joint answer, admitting the accident, and alleged that same was purely accidental and without fault on the part of either of said defendants, and denied generally the allegations of plaintiff's petition. The material facts are stated under another subdivision of this opinion.
[3] II. Much of the complaint of counsel for appellant relates to the failure of the court to submit the issues against the defendants jointly. No exception was taken to the instructions by the defendant Dubois. The court stated in its instruction the degree of care required of each of the defendants separately as follows:
“That it was the duty of the defendant James M. Dubois in operating his train to exercise ordinary care to avoid collision with any other train, and a failure to exercise such care would be negligence,” and “that it is the duty of a common carrier of passengers to exercise the highest degree of care in transporting its passengers to their destination, and to this end it is its duty to see that nothing which human foresight could guard against happens in the operation, management, and control of its train, their equipment, or its track that will imperil the safety of its passengers, and a failure to perform such duty is negligence.”
The exceptions taken to the instructions that are relied upon in the briefs and argument of counsel may be summarized as follows: (a) That plaintiff's cause of action, as alleged in his petition, is joint; that the only negligence, if any, disclosed by the evidence resulting in the collision and consequentinjuries to plaintiff was the negligence of the engineer, and that the court should have submitted the cause jointly, holding both defendants to the same degree of care; (b) that the defendant engineer should have been held to the exercise of the highest degree of care; (c) that the court incorrectly summarized the particular acts of the defendant constituting negligence upon his part.
As stated above, plaintiff alleged in his petition that the collision was “due solely to the negligence and carelessness of the defendants,” but no particular or specific acts of omission or commission are recited therein. The evidence disclosed the claim of defendants to be that the collision was due to extraordinary and unavoidable causes, and not to the negligence of the engineer or any other of the company's servants; that the track was so frosty that when the air brakes were applied the train slid upon the track, passed the switch, and collided with the train upon which plaintiff was riding; that all of the means available to the engineer were employed to stop the train, but, on account of the condition of the track and the hard northwest wind which blew the sand therefrom, the engineer was powerless to stop the train in time to avoid the collision. The testimony of employés of the company who inspected the respective trains at Waterloo and Ft. Dodge was offered in evidence for the purpose of showing that every precaution was taken by appellant to have its equipment in the usual working order. Evidence was also introduced to the effect that the engineer and conductor upon the east and west bound trains had orders to pass at Boyd, and that Dubois knew that the east-bound train was to take the siding for the purpose of permitting the west-bound train to pass. The petition does not charge that the sole negligence of the defendants was the failure of the engineer to stop the train in time to avoid the collision. The charge is that the negligence of both was the proximate cause of his injuries. So far, however, as the allegations of the petition are concerned, the negligence of the defendant company may have been due, in part, to the negligence of its codefendant and also to negligence upon the part of other employés. The petition does not charge a joint cause of action, but that the injuries received by plaintiff were due to the negligence of both defendants. The equipment of the engine and train in charge of defendant, the direction and movement of both trains, the condition of the roadbed and track were under the control and supervision of the company, together with all the instrumentalities of transportation. The duty of the engineer was confined to the proper movement and operation of his engine and train. Both defendants might have been guilty of actionable negligence, but not necessarily in the failure to perform the same duty.
[4] The submission of the issues separately to the jury was not necessarily in itself erroneous, or prejudicial to appellant. If, in the judgment of the court, they could be more clearly understood and comprehended by the jury, if submitted separately than jointly, it would not be an abuse of the court's discretion to submit them in that way. The real question presented by the exception to the instruction upon this point is whether, assuming that the court should have informed the jury that it was the duty of both defendants to exercise the highest degree of care, the submission separately of different degrees of care was prejudicial to appellant. No instruction defining the degree of care required of the engineer was requested by appellant. It is conceded that the defendant company, as a common carrier, is bound to the exercise of the highest degree of care for the safety of its passengers. The instruction, therefore, submitting the issues as against appellant, is not vulnerable to attack.
The court in its tenth instruction included a statement of particular acts, the failure to perform which would constitute negligence upon the part of the engineer. This statement was gathered from the evidence, and is apparently a complete statement of the duty of the engineer under the circumstances shown. If, as contended by counsel for appellant, the jury should have found from the evidence that the only negligence, if any, upon the part of its employés causing the collision, was the failure of the engineer to exercise the highest degree of care, how was appellant prejudiced by an instruction imposing upon him the duty to exercise ordinary care only? There was nothing in the manner in which the case was submitted to arouse the passion or prejudice of...
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