Hough v. Ill. Cent. R. Co.

• Citation: 149 N.W. 885,169 Iowa 224
• Decision Date: 16 December 1914
• Docket Number: No. 29538.,29538.
• Parties: HOUGH v. ILLINOIS CENT. R. CO. ET AL.
• Court: United States State Supreme Court of Iowa

169 Iowa 224

149 N.W. 885

HOUGH

v.ILLINOIS CENT. R. CO. ET AL.

No. 29538.

Supreme Court of Iowa.

Dec. 16, 1914.

Appeal from District Court, Pottawattamie County; A. B. Thornell, Judge.

Action at law to recover damages for the death of Willis King, who was struck at a highway crossing on defendant's line of road by a passing train and instantly killed. Fuhrman was the engineer on the engine drawing the train, and he was made a party defendant. Defendants filed separate answers, and on the issues joined by the pleadings the case was tried to a jury, resulting in a verdict for plaintiff in the sum of $8,170 against both defendants, which the trial court reduced to the sum of $6,170, and for the latter amount rendered judgment. Defendants appeal. Affirmed.Tinley, Nitchell & Pryor, of Council Bluffs, Helsell & Helsell, of Ft. Dodge, and Blewett Lee and W. S. Horton, both of Chicago, Ill., for appellants.

John P. Organ, of Council Bluffs, for appellee.

DEEMER, J.

Plaintiff's intestate, Willis King, was killed at a railway crossing of the Illinois Central Railroad at a point between the towns of Clara and Ascott, in Pottawattamie county, Iowa, about 5 o'clock in the afternoon or evening of December 23, 1913. He was traveling in a top buggy drawn by a single horse, and with him was a young lady something over 15 years of age. Deceased had started, about 7 o'clock in the morning of the day he was killed, from the town of Blencoe, something like 55 miles from the place of the accident, to go to the town of Crescent to spend the holidays with his mother and a little son, who lived near the latter town. They arrived at the town of California Junction about noon, and were proceeding leisurely on their way and, generally speaking, in a southerly direction, until they got into Pottawattamie county, where they were compelled to take a highway running a little north of east, and which crossed defendant's right of way at approximately right angles. This crossing was from one-half to three-quarters of a mile from where the highway turned east from its generally north and south course, and, as the railroad track was upon a grade or slight embankment, it was visible for half a mile as one drove east upon the road. There was a little snow upon the ground, and there was a mild wind from the north, but it was not unusually cold for that time of year. The side curtains of the single-seated buggy were on, and they were buttoned down, but the front was entirely open. There were several robes in the buggy, and each of the occupants had wrapped himself with the robes, and in addition each had on winter wraps, but neither had their ears covered, although deceased had a cap provided with fur ear tips, which were not down. The horse had been walking slowly as they approached the crossing, and did not increase his gate until just before a passenger train on defendant's road struck the vehicle near the front end thereof, and apparently between the horse and the vehicle, knocking both from the track and throwing the horse to one side of the track and the vehicle and its occupants to the other. The train which did the damage was a passenger train coming from the south, and it was running at the rate of approximately 50 miles an hour, when the fireman discovered the horse and gave the engineer the alarm. The train which caused the accident ran some distance beyond the crossing before it was stopped, the witnesses differing widely in their testimony as to the distance, and when King was picked up after the collision it was found that he was dead. Defendant Fuhrman was the engineer in charge of the train.

The allegations of negligence upon which the case was submitted to the jury were in substance: (1) Failure of the defendant company and its engineer to give the usual, customary, and statutory crossing signals; (2) failure to give other signals and warnings of the approach of the train or to slacken the speed of the train for the crossing, by reason of the dangerous character thereof, due to the growth of weeds and brush upon defendant's right of way to the south and west of the crossing, in such a manner as to obstruct the view of a traveler, approaching the crossing, of a train coming from the south, and to prevent the engineer in charge of the train from seeing a traveler upon the highway approaching the crossing; (3) in permitting weeds and bushes to grow and remain upon the right of way in such a manner as to obstruct the view of a train coming from the south, and to prevent the engineer from seeing any one approaching the crossing from the west, upon the highway in question. The defendants denied all negligence and pleaded contributory negligence on the part of plaintiff's intestate. The trial court submitted each of these allegations of negligence and specifically stated that:

“If it appears that said whistle was at least twice sharply sounded about 1,300 feet from the crossing in question, and the bell thereafter rung continuously until said crossing was passed, it would, in my judgment, be a compliance with the law as to said statutory signals; but if it appears from the evidence, by the greater weight thereof, that either of said statutory signals was omitted by the defendants, the failure to give such statutory signal would be negligence. As before stated, it is for you to say, from all of the evidence bearing thereon, whether said statutory crossing signals were given or not. If they were given, then your verdict must be in favor of the defendant John Fuhrman, as in my judgment he is not shown by the evidence to be responsible for the other acts of negligence alleged, if such acts are shown in the evidence. If the whistle on the engine was twice sharply sounded where the defendant's whistling post is situated or about 1,300 feet south of the crossing in question, and the bell rung continuously thereafter until said crossing was passed, it would, in my judgment, be a sufficient compliance with the statute, and in that event, as before stated, your verdict must be in favor of the defendant Fuhrman; but if the evidence shows, by the greater weight thereof, that said signals were not given, then both the defendant Fuhrman and the defendant railroad company would be guilty of negligence.”

The jury was then told that the other matters of negligence alleged had application only to the railway company, and that, if they failed to find negligence of the defendant in either of the respects charged, their verdict should be for the defendants. In other words, the jury was instructed that its verdict might be against both defendants in the event the statutory signals were not given, but that no verdict could be returned against the engineer, even though it found the defendant railroad company negligent, unless that negligence was the omission to give the statutory signals. The verdict, as we have seen, was against both defendants. We must assume that the jury followed the instructions and should consider the case from that standpoint. This eliminates one or more doubtful propositions in the case and confines our inquiries to rather narrow fields.

[1] Passing for the moment some rulings on testimony, we go directly to one fundamental proposition argued for the appellant Fuhrman to the effect that the case should not have been submitted and no verdict rendered against him, for the reason that no cause of action is stated, and no action will lie against him individually for an instant death caused by his failure to give the statutory signals. As we understand counsel, the proposition here is that the statute creates the liability; that this is of the railroad company, and not of its employé; and that, as at common law no recovery would lie for a wrong causing instant death, there can be no recovery here, and certainly no joint recovery for violation of a statutory duty, which statute fixes the liability simply upon the railway company. The statute with reference to the giving of signals reads as follows:

“A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed; but at street crossings within the limits of cities or towns the sounding of the whistle may be omitted, unless required by ordinance or resolution of the council thereof; and the company shall be liable for all damages which shall be sustained by any person by reason of such neglect. Any officer or employé of any railway company violating any of the provisions of this section shall be punished by fine not exceeding one hundred dollars for each offense.” Code, § 2072.

It will be noticed that this section requires the giving of the signals and provides for both civil and criminal liability. The rule which generally obtains in this state is that the violation of a statute is in itself negligence, and that one injured in consequence thereof is entitled to recover, provided he himself is free from contributory negligence. As a rule it is no defense for one to show that his act or omission was while acting as agent or servant for another. As we view it, the question here is not one of survival of actions or of providing a remedy for instant death, but rather whether the statute creates any civil liability on the part of the servant or employé guilty of the act or omission, and if not, whether any such liability would have existed at common law.

[2] Under our statutes, all causes of action survive and may be brought notwithstanding the death of the person entitled to the same; and the right of civil remedy is not merged in a public offense. Code, §§ 3443 and 3444. Code, § 3445, also provides:

“Any action contemplated in the two preceding sections may be brought, or the court, on motion, may allow the action to be continued, by or against...