Donald v. Chi., B. & Q. Ry. Co.

• Decision Date: 18 January 1895
• Citation: 93 Iowa 284,61 N.W. 971
• Court: Iowa Supreme Court
• Parties: DONALD v. CHICAGO, B. & Q. RY. CO.

93 Iowa 284

61 N.W. 971

DONALD

v.CHICAGO, B. & Q. RY. CO.

Supreme Court of Iowa.

Jan. 18, 1895.

Appeal from district court, Union county; W. H. Tedford, Judge.

Albert A. Maiken was a son of the plaintiff, in the employ of the defendant company for some time prior and up to September 20, 1891, when he was killed while engaged as a brakeman on a freight train. This action is to recover damages sustained by the plaintiff in the loss of the services of her son, whom she alleges to have been, at his death, some 16 months less than 21 years of age, and also to recover expenses incurred by her in his burial. In the third count of the petition, plaintiff claimed $88.90 as wages due her son at the time of his death. The fourth count is based on a certificate of membership of her son in the relief department of the defendant company, known as the Burlington Voluntary Relief Department, which department maintains a fund for the relief of members and their relatives or beneficiaries in cases of sickness, accident, or death. The amount claimed in this count is $500. The jury found for the plaintiff on the first and second counts, for loss of services and funeral expenses, and for the defendant on the third count, for wages alleged to be due. As to the fourth count, the jury was instructed to find for the defendant. From a judgment on the verdict based on the first and second counts of the petition, the defendant appealed; and, from the order of the court directing a verdict for the defendant on the fourth count, the plaintiff appealed. On defendant's appeal, reversed; on plaintiff's appeal, affirmed.James G. Bull, for plaintiff.

Smith McPherson and Sullivan & Sullivan, for defendant.

GRANGER, J.

1. We will first notice defendant's appeal, in which it is contended that the verdict is without support in the evidence. Maiken was killed near Lucas, in Lucas county. The negligence charged against the defendant is in the construction or maintenance of an overhead highway bridge. Near where the body of Maiken was found is such a bridge, and the claim is that it is so low that Maiken, when on the top of the freight train, was struck by the bridge as the train passed under it, and killed. It seems to us that such a conclusion is not to be legitimately drawn from the evidence. Some facts in the case are without dispute. The bridge in question is located at a curve in defendant's road, and at the curve, as is usual, one rail of the track is higher than the other. At this curve the difference in the height of the rails was about 1 1/2 inches. By actual measurements from the higher rail to the bridge, it is 18 feet 8 1/2 inches. The train from which Maiken fell was composed of freight cars of the company, including some furniture cars. The height of the standard or “regulation” car is not definitely fixed, but it is lower than the furniture car, which is 12 feet 6 inches. The evidence as to the height of Maiken is not in harmony, his height being fixed at from 5 feet 10 inches to 6 feet 1 inch. Assuming the latter to be correct, the top of his head, when standing on the higher car, would be 18 feet 7 inches from the rail, and 1 1/2 inches below the bridge. This, we think, is the most favorable view of the evidence for plaintiff. There is no claim that there can be a recovery, unless the death was caused by the bridge. The only reason for thinking that Maiken was struck by the bridge is that his body was found near to, and a little east of, it. The train was going east. No one saw him fall, and he was not missed from the train until it reached Chariton. It passed the town of Lucas without stopping. In answer to the claim of defendant that the evidence fails to show that Maiken was struck by the bridge, plaintiff makes some reference to evidence, but the references do not change its effect from our statement of it. The argument is something of a complaint because the defendant did not prove, or, perhaps, a claim that it might have shown, some facts not proven. As an instance, it is said there is no proof of the height of a standard car, nor of the car next the engine. It is also said that defendant “could have given the exact height of every car in the train, and especially of the four or five cars in the front, of which they had the numbers. The appellee was not able to do so.” It is then claimed that, because plaintiff did not make such proof, it is a strong presumption against it; and reference is made to Clifton v. U. S., 4 How. 242. That action was an information charging the forfeiture of goods seized by the United States because of fraudulent practices against the the revenue laws. There was such evidence that the court “had pronounced the proof sufficient to establish the offense, unless explained and rebutted by opposing evidence.” The case then makes an application of the rule that where facts are thus established, and a party has better or conclusive evidence of an opposite character, and fails to produce it, the presumption is against him. Such a rule does not apply to this case. Plaintiff put on the witness stand the engineer of the company, and made certain proofs as to the height of the cars, and, for all that appears in the record, might have made full proofs of the particulars complained of, but did not attempt it; and by such failure she is short of the facts to, in any way, support her claim. If the evidence was such as, unexplained, would support the verdict, and the situation was such that if there could be a contrary showing the evidence for that purpose would presumably be in the custody or under the control of the defendant, the rule invoked would be pertinent. We further notice, as showing plaintiff's application of the evidence to support the verdict, this clause of the argument: “There is no doubt, had the furniture cars, whose names and numbers were known to the defendant, been of such height that Mr. Maiken could not have struck the bridge, standing or walking on the top of them, passing under said bridge, the jury would have been fully acquainted with the facts, to their satisfaction.” This can only mean that, unless the jury found that they were not of such height, it could assume that they were, and such a theory must have been the one on which the verdict was found. But there is a want of consistency in the claim, in any event, for plaintiff furnished the proof that, by measurement, a furniture car of the company was, as we have said, 12 feet 6 inches high. It is true that this was not one of the cars in the train, but the proof must have been offered to show the height of that class of cars. Plaintiff made no attempt to show the height of the cars in the train in any other way, and there is no showing or claim that the plaintiff was prevented, by the conduct of the company, from so doing. So that it may be said that the evidence is quite a strong showing against the accident being caused by the bridge, upon actual measurements, barring a feature of the evidence to be next considered. The civil engineer of the defendant company was a witness for plaintiff, and testified that a man running or trotting attained an altitude about an inch and a half greater than when standing. If that be true, and Maiken was running or trotting on a furniture car as it passed under the bridge, his head could have just reached it. But there is no proof that he was on a furniture car at that time, or that he was running or trotting, nor are there circumstances from which it could be inferred. The bridge was examined, and there was no evidence to show that he struck it. Nothing about the body bore evidence of contact with the bridge, more than it did of his merely falling from the train. The evidence shows that the train rounded the curve at a high rate of speed, and it is to be inferred that Maiken fell from it; and, beyond that, the cause of his death is purely conjecture. His hat was found, and some dandruff on or in it, and that is thought to be evidence of contact with the bridge; but such claims only show the extremity demanded to sustain the verdict. If the dandruff is to be accounted for because of a blow or injury, it is exactly as consistent with striking his head in the fall, as against the bridge, and even more so, for the evidence fairly shows that his head would not reach the bridge. There is no view of the evidence on which the verdict can be sustained.

2. An important question is presented on plaintiff's appeal from the action of the court in directing a verdict for the defendant on the fourth count of the petition. It is highly important that the facts should be well understood. The relief department of the defendant is designed to raise and maintain a fund for sick and disabled employés, and, in...