Croft v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 25 September 1906
• Citation: 108 N.W. 1053,132 Iowa 687
• Parties: LAURA M. CROFT, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

108 N.W. 1053

132 Iowa 687

LAURA M. CROFT, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

September 25, 1906

REHEARING DENIED, FRIDAY, JANUARY 18, 1907.

Appeal from Muscatine District Court.--HON. A. P. BARKER, Judge.

ACTION to recover damages arising out of a personal injury. The case was tried to a jury resulting in a verdict and judgment in favor of plaintiff, and the defendant appeals.

Affirmed.

Carroll Wright, J. L. Parrish, and Carskcaddan, Burk & Pepper, for appellant.

E. M Warner and Richman & Richman, for appellee.

OPINION

BISHOP, J.

The accident resulting in the injury of which plaintiff complains, occurred at Buffalo, this State, a station on the line of defendant's railway. Plaintiff's husband, S. H. Croft, was agent for defendant at said station, and resided with his family in a portion of the depot building provided by defendant for that purpose. Passing through Buffalo, the railway tracks run east and west, the one used by west-bound trains being nearest the depot building. The building is one story in height, and a platform extends the full length east and west. The waiting room for passengers is located at the extreme west end. There is then an office with a bay window looking out upon the platform, then a freight room, and then the living rooms for the agent at the extreme east end. From the waiting room, the freight room, and the living rooms, doors open out upon the platform. The office is entered by one door leading from the waiting room and another leading from the freight room. In brief, the circumstances of the accident were that as a west-bound freight train, being drawn by two engines, was passing through the station the rear engine and a number of cars became derailed; one of the cars so derailed--a stock car loaded with railroad iron--crashed into the building, demolishing the entire building with the exception of the agent's living rooms. At the moment of the accident plaintiff was in the office room assisting her husband in his station work, and she was caught in the wreckage and sustained severe injuries. The gravamen of the action is negligence, and the averments in respect thereto are that the condition of the track at the place where the derailment took place was defective in that the ties were old and rotten to such an extent that the rail spikes "had very insecure hold therein, and the said ties were so rotten and weak as to be of insufficient strength to prevent the spreading of the rails under the weight of a train running thereon;" further, that when the train in question which was a heavy one, drawn by two locomotives, and which was being run and operated at a very rapid and dangerous rate of speed, came upon such defective track, the rails thereof, because of the rotten and defective ties, spread and caused the train to leave the track. The answer is a general denial.

I. As we have seen, plaintiff was in the office room of the depot at the time of the accident. It was made to appear on her behalf that the duties of her husband as station agent were onerous and that during the years of his occupancy of the position she had been accustomed to go into the office almost daily and assist him in his work. Over the objection of defendant, plaintiff was then permitted to show that the course of conduct thus pursued was well known to and acquiesced in by defendant's superintendent in charge of the division. The point of the objection was that it did not sufficiently appear that the person designated as superintendent was in fact such; further, that no showing had been made that the matter of the conduct of the business of the station came within the scope of the powers and duties of the superintendent. There was direct evidence that the person named acted as superintendent, and the husband of plaintiff testified that he received his orders from, worked under, and made his reports to such person as superintendent. It is not conceivable that the defendant was ignorant of the course of business thus disclosed. In view thereof, we think a conclusion of authority and duty was warranted, and hence that the introduction of the evidence involved no error.

II. By the fourth instruction, given by the court on its own motion the jury was told in substance that if previous to the time of the accident, plaintiff was in the habit of going to the ticket office to assist in the work thereof, and that this was with the consent of her husband, the agent, and known to the superintendent of the division, who either assented thereto or made no objection to her presence there, then she would have the right to assume that her presence was with the consent of defendant; that under such circumstances her relation to defendant would be that of a licensee--"that is, a person there with the consent of defendant with knowledge that she was likely to be there at such times." It is then said that "as to her, as such licensee, defendant would be under no obligation to change the condition of its track for her protection even after it knew of such habit on her part and assented thereto--provided you find such to have been her habit and that defendant did so assent--but it would owe her the duty of ordinary care in the use of such track, having regard to its condition to avoid injury to her. If it failed in the exercise of such care she could recover against it." A criticism of this instruction made by counsel for appellant--and apparently presented in this court for the first time--is to the effect that it was error to include any reference to the fact that plaintiff's presence in the office was on the invitation or with the consent of her husband. The precise point made is that "the jury would rightfully conclude from this language that the consent and invitation of her husband and acceptance of her services in his own behalf created a relation by the plaintiff to the defendant, imposing an obligation upon the part of the defendant to her. " There is no merit in this criticism. In its last analysis, the material question at issue was the rightfulness of the presence of plaintiff in the office. Now it will be borne in mind that the consent of defendant relied upon was tacit in character. And as we read the instruction, the fact of the husband's consent is recited merely as one of the possible facts making up the situation presented to the defendant through the knowledge and understanding of its superintendent. If true, therefore, the fact was proper to be considered in giving interpretation to the silence of such superintendent. Upon no view could it be concluded, as counsel seem to think, that the inclusion of the language objected to, carried with it the suggestion that should the jury find that consent of the husband was given, a finding of employment by defendant would be warranted. By no fair intendment could the language used be given such interpretation. Moreover, by the instruction as a whole, all question of employment was excluded from consideration. In express...