Ford v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 27 May 1898
• Citation: 75 N.W. 650,106 Iowa 85
• Parties: MARY FORD, Administratrix of the Estate of H. P. Ford, Deceased, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

75 N.W. 650

106 Iowa 85

MARY FORD, Administratrix of the Estate of H. P. Ford, Deceased, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 27, 1898

Appeal from Cedar District Court.--HON. W. G. THOMPSON, Judge.

ACTION at law to recover damages resulting from the death of H. P Ford. The negligence alleged is failure to erect a safe and sufficient cattle guard at a place where the railroad crosses a public street in the town of West Liberty. The defendant denied the alleged negligence, and pleaded contributory negligence and waiver of the defects. The plaintiff, in reply, pleaded protest and promise of repair. The case was tried to a jury, resulting in a verdict and judgment for plaintiff. Defendant appeals.

Reversed.

Robert Mather, Cook & Dodge, and T. B. Hanley for appellant.

Preston Wheeler & Moffit for appellee.

OPINION

DEEMER, C. J.

This is the third time this case has been before us. The first opinion will be found in 91 Iowa 179, the second in 71 N.W. 332. A re-hearing was granted on the second appeal, and the case has again received most careful consideration. The facts are fully set out in the first opinion, and need not be repeated, except in so far as they may be necessary to a full understanding of the points decided upon this appeal.

The court instructed that under the issues the burden was on the plaintiff to establish the alleged negligence, the injury to the estate and consequent damage; and on defendant "to establish by a fair preponderance of the evidence the allegations which it makes against plaintiff's intestate, and which it charges contributed to his injury, as well as to establish any waiver claimed by it." This was the only instruction relating to the burden of proof which was given. The reply filed by plaintiff admitted that her intestate knew of the cattle guard, and that it was dangerous, and with such knowledge continued in the employment of the defendant. But, in avoidance, plaintiff pleaded protest and promise of repair. It is evident that the court was in error in placing the burden on defendant of proving a matter which was admitted in the pleadings. Appellee contends, however, that waiver consists of four ingredients, viz.: knowledge of danger, continuance in employment, absence of protest, and absence of promise to repair; and that the burden was on defendant to prove each and all of these propositions. The case of Worden v. Railway Co., 72 Iowa 201, is cited in support of this position. In that case the defendant alleged that deceased, long prior to the injury, had full knowledge of the condition of the track, and continued in the service without objection, and without promise of change. The question here presented does not seem to have been argued in that case, for the reason, no doubt, that defendant pleaded absence of protest and promise to repair. It is true, we said "that the instruction, standing by itself, does not express the law, because it omits the element of waiver, which consists in remaining, after knowledge, without objection, and without promise of amendment." This is a correct statement of the law, but it does not support the appellee's contention in this case. No reference is made to the burden of proof, and no attempt was made to determine where it should be placed. The question was determined adversely to appellee in the case of Coates v. Railway Co., 62 Iowa 486. In that case it is said, after referring to the case of Wells v. Railroad Co., 56 Iowa 520, which requires the defendant to prove that the person injured had knowledge of the danger: "We think that, when the defendant has shown that fact, it may well rest upon it as a defense, and that, in the absence of some excuse from the plaintiff for exposing himself to dangers known to him, there can be no recovery. It is a general rule (subject, of course, to some exceptions) that a party to an action is not required to establish the negative of a proposition. When the defendant shows that the plaintiff knew of the dangerous condition of the road or machinery which he aided to operate, it is then incumbent on the plaintiff to show that he was in some manner justifiable in exposing himself to the danger. The fact that such proof cannot be made in some cases, where the injury results in death, is no reason why the rule that the party who holds the affirmative of an issue is required to assume the burden of proof should not be enforced. If the burden had been held to rest on the defendant to prove the negative, it would have been required to introduce as witnesses all of its officers and employes to whom such notice might be properly given, and prove by them that no complaint was made." This is a correct statement of the rule as we understand it, and is a complete answer to appellee's argument. In the argument upon re-hearing, appellee concedes the error in the instruction, but argues that it was without prejudice, for the reason that in another instruction, to-wit, the eighth, the court told the jury that plaintiff conceded that deceased knew of the location and construction of the cattle guard when he entered defendant's service as a switchman. It is true, such a statement is found in the eight paragraph of the charge, but it has no reference to the question as to the burden of proof. It relates simply to the matter of waiver, and is a correct statement of the law upon that subject. But how are we to know but that the jury understood the word "waiver," as used in instruction 4, as appellee's counsel understood it? As said in the Worden Case, "waiver consists in remaining, after knowledge, without objection, and without promise of amendment." So counsel understood it, and the jury, no doubt, had the same idea. If they did, then the fourth instruction cast upon defendant the burden of proving absence of protest, and promise of repair. Again, it is suggested that, as defendant asked no instruction with reference to the burden of proof, it is not in position to complain. It is true, no instruction was asked; but the court, in the absence of a request, undertook to state where the burden was as to each and every issue presented by the pleadings; and the rule is well settled that, when the court attempts to so instruct, it must do so correctly, whether request be made or not. State v. Pennell, 56 Iowa 29, 8 N.W. 686. As the reply admitted knowledge of the defect, and continuance in the employment, plaintiff was not entitled to recover without proving affirmatively that deceased protested against the defect, and was promised that it should be repaired. No such instruction was given. On the contrary, the court said that, under the issues as tendered, the plaintiff need only prove the alleged negligence, the injury to the estate she represented, and the consequent damage. Surely, this was error of the most prejudicial kind. Moreover, as the court instructed that the burden was upon the defendant to establish the allegations which it made against the plaintiff's intestate, as well as to establish any waiver claimed by it, and at the same time instructed that plaintiff had admitted that her intestate had knowledge of the defect and the dangers incident thereto, it is evident that something more was intended by the use of the word "waiver" than mere knowledge and continuance in employment. Counsel for appellee certainly had this idea upon the original submission, and it is strange if the jury did not reach the same conclusion. When error appears, prejudice will be presumed, unless the contrary affirmatively appears. With this rule in mind, it seems quite clear that there was not only error, but that the error was prejudicial. But it is said the instructions, taken as a whole, are not erroneous. This argument is based upon the thought that the jury understood the term "waiver" to mean no more than knowledge of the defect, and continuance in the employment, and further proceeds upon the idea that, as the eighth instruction states that these matters were admitted, there was no prejudice. The fault in this argument lies in the fact that, if the instructions are so construed, they are in direct conflict; one saying that the burden was upon defendant to prove a certain state of facts; and others, that this same state of facts was admitted by the plaintiff. Contradictory and conflicting instructions are almost universally held to be erroneous, except in cases where the court can say there was no prejudice. See Carlin v. Railroad Co., 31 Iowa 370; Potter v. Railroad Co., 46 Iowa 399; Roby v. Appanoose County, 63 Iowa 113, 18 N.W. 711; Blaul v. Tharp, 83 Iowa 665. From any point of view, the instruction was erroneous, and, as the error does not affirmatively appear to have been without prejudice, the case must be reversed.

II. The negligence charged was...