Burg v. Chi., R. I. & P. Ry. Co.

• Decision Date: 31 January 1894
• Court: Iowa Supreme Court
• Parties: BURG v. CHICAGO, R. I. & P. RY. CO.

90 Iowa 106

57 N.W. 680

BURG

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Jan. 31, 1894.

Appeal from district court, Polk county; C. P. Holmes, Judge.

The plaintiff is the administratrix of the estate of Peter Burg, Jr. Peter Burg, Jr., was a child three years of age, in October, 1890, living with his parents near the line of defendant's road within the city limits of Des Moines, some three miles west from the passenger depot in the city. On the 11th day of October, 1890, Peter Burg, Jr., with his sister, a child about 19 months old, left the home of their parents, some 163 feet south of defendant's track, went upon the track, and sat down between the rails, and while playing there they were struck by defendant's train, and killed. This action is to recover damage because of the death of Peter Burg, Jr. In the district court there was a judgment for the defendant, and the plaintiff appealed.Cole, McVey & Cheshire, for appellant.

Cummins & Wright and Geo. E. McCaughan, for appellee.

GRANGER, C. J.

1. In the city of Des Moines is an ordinance limiting the rate of speed of trains to six miles an hour. Plaintiff offered in evidence the ordinance. It was excluded under an objection that it was “incompetent, immaterial, and for the reason that the evidence already shows that the place where the accident happened was so far removed from a crossing as to render the ordinance unreasonable, even if it was in force.” When the ordinance was adopted, the place where the accident happened was not in the city of Des Moines, the city having been since, by an act of the legislature, enlarged so as to embrace that with other territory. It will appear from this fact that the ordinance was not adopted as being, in the judgment of the council, a reasonable regulation for the operation of trains at the point in controversy. It is not to be understood that the ordinances of the city do not apply to it as enlarged; but, in determining the question whether or not the ordinance is so unreasonable as to be of no validity at the point in question, importance may be given to the fact of whether or not the act, at the time of its passage, was designed or intended as having force there, for, if not, the legislative sanction comes from the fact that the ordinance stands unrepealed after the territorial change in the city, rather than from legislative action based upon known conditions. How far such a fact should, or might, properly influence a judicial determination of the question of the unreasonableness of an ordinance, as bearing on its validity, is not, perhaps, to be definitely stated, nor would it likely be the same in all cases. At the place where the accident occurred, there was no greater necessity for such a limit on the speed of the train than in very many places outside the city or station limits. East of the point some 2,800 feet are brickyards, where there is an opening for men and teams to cross the track. From this point west, some two miles beyond the place of the accident, the defendant's right of way is fenced. It is also fenced through West End addition to the city of Des Moines, which is over 1,200 feet east of the place of the accident, and in this addition the platted streets do not cross the railway track. Along where the accident happened, on both sides of the track, there are no residences except that of Burg, it being about a fourth of a mile from any other, and the land is wooded and uncultivated on both sides of the road, except a small piece near the house of Burg. This case comes clearly within the rule and reasoning of Meyers v. Railroad Co., 57 Iowa. 555, 10 N. W. 896. Some importance is attached to the facts of the platted West End addition and the brickyards crossing just east of it. They are not of such importance as to change the rule. In the addition there are but a few buildings,--seven in all,--and, as we have said, the streets, as opened, do not cross the right of way, which is fully protected by its fences. The brickyards crossing is some 2,800 feet east of the point of the accident, and could not in any way affect the reasonableness of the rate of speed at that point. After leaving the brickyards crossing, if not before, the train had passed the conditions as to settlement and the business of the city that demanded the limit upon train speed that is imposed by the ordinance. The city, as enlarged, is nine miles in width, requiring, under the limitations of the ordinance as to rate of speed, one hour and thirty-five minutes to make the distance, when, without any opportunity for dispute, for a part of the distance the limit is absolutely unnecessary. As is said in Meyers v. Railroad Co., supra: “The ordinance in question not only places an unreasonable restriction upon the railways themselves, but it unreasonably impedes the whole traveling public.” It is, however, urged that the action of the city council is conclusive as to the validity of the ordinance. The Meyers Case cited involved the validity of an ordinance in the city of Council Bluffs, which city is under a special charter which does not, in express terms, grant to the council power to regulate the speed of trains, but the authority so to do is implied from other express powers granted. The city of Des Moines is incorporated under the general incorporation laws of the state, and the law, in express terms, confers authority upon cities incorporated under it to regulate the speed of trains within their limits. It is said that the power of courts to inquire as to the reasonableness of such ordinances is limited to cases in which the ordinances are adopted under an implied authority. In the Meyers Case the authority of the court to determine the reasonableness of the ordinance is not questioned. The case, however, cites as authority the rule announced in 1 Dill. Mun. Corp. § 319, that “in this country the courts have often affirmed the general incidental power of a municipal corporation to make ordinances, but have always declared that ordinances passed in virtue of the implied power must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the state.” The case is only a recognition of the rule of such interference by the courts where the action of the council is upon implied authority only. Its only application to this case is that it does not announce the rule as applicable to cases of express, as well as implied, authority, leaving, perhaps, the inference that in cases of express authority a different rule might obtain. It is true that the rule as stated in Dillon on Municipal Corporations, because of the specification as to implied powers, would seem to exclude from its operation cases in which the ordinances were adopted under express authority. Such a rule obtains in statutory, and perhaps, to a greater or less extent, in general legal, interpretations. Counsel for appellant cite numerous authorities, some of which support the rule of their contention, while others, as we view them, do not. No less can be said than that the authorities are in conflict. In the case of Town of State Center v. Barenstien, 66 Iowa, 249, 23 N. W. 652, which was a criminal prosecution for the violation of an ordinance licensing peddlers, adopted under an express authority, this court said: “The power to regulate and license peddlers is unquestioned. It is expressly conferred by section 463 of the Code. But the power can be exercised only under an ordinance; and if the ordinance is passed for such purpose, and is such that the court must, upon a mere examination of its terms, declare it unreasonable, it is void.” The case cites for its support Dill. Mun. Corp. § 254, which in the fourth edition is section 320, following the one heretofore quoted from, and the two sections are designated as “on the same subject.” It will thus be seen that this court is committed to a broader rule than that of appellant's contention. As bearing on the case, see Gray v. Land Co., 26 Iowa, 387;Williams v. Carey, 73 Iowa, 194, 34 N. W. 813;Hayes v. City of Appleton, 24 Wis. 542;Clason v. City of Milwaukee, 30 Wis. 316.Evison v. Railway Co., 48 N. W. 6, is a Minnesota case, and its similarity to this case is quite striking. The authority to the city council to regulate the speed of trains was expressly granted. We quote the following from the opinion: “A mere statement of these facts ought to be conclusive that, as applied to this part of defendant's road, the ordinance is so manifestly unnecessary to the protection of health and property that no two minds could reasonably differ upon the question. According to the map, which is made part of the record, the limits of the city must be about nine miles in length by seven in breadth, embracing much land that is not even platted, and hence presumably unimproved, or else devoted to purely agricultural purposes; and it is undoubtedly true that much of that which is platted on paper is in the same condition. To apply uniform, ironclad rules to the whole of this territory, that no train shall run over four miles an hour, is unnecessarily oppressive, and, if obeyed or enforced, would deprive the public of anything like reasonable suburban transportation.” We think there was no error in excluding the ordinance under the objection made.

2. A demurrer was sustained to the following amendment to the petition: “That for a long period, to wit, for more than ten years, defendant's roadbed and right of way, from a point west of where the accident happened to the city of Des Moines, has been used by the public as a thoroughfare to and from said city of Des Moines, which fact was well known to the defendant and its employes; by reason of which it became the duty of defendant and its employes to use greater diligence in looking out for persons who might be upon the track at this point than if the defendant had not permitted such use of its tracks...