Johnston v. Delano

• Decision Date: 26 November 1915
• Docket Number: 30086
• Citation: 154 N.W. 1013,175 Iowa 498
• Parties: A. L. JOHNSTON, Appellee, v. FREDERICK A. DELANO et al., Receivers, Appellants
• Court: Iowa Supreme Court

154 N.W. 1013

175 Iowa 498

A. L. JOHNSTON, Appellee, v. FREDERICK A. DELANO et al., Receivers, Appellants

No. 30086

Supreme Court of Iowa, Des Moines

November 26, 1915

REHEARING DENIED FRIDAY, APRIL 7, 1916.

Appeal from Shenandoah Superior Court.--GEORGE H. CASTLE, Judge.

ACTION at law to recover damages to plaintiff on account of the death of his minor son. There was a verdict and judgment for plaintiff, and defendants appeal.

Affirmed.

N. S Brown, and Jennings & Mattox, for appellants.

Earl R Ferguson and C. R. Barnes, for appellee.

WEAVER, J. EVANS, C. J., DEEMER and PRESTON, JJ., concur.

OPINION

WEAVER, J.

The accident in which plaintiff's son lost his life is the same which we had to consider in the case of Grafton, Admrx., v. Delano, 175 Iowa 483, 154 N.W. 1009. We shall, therefore, not here repeat the history there recorded, save so far as may be required for the purpose of clearness.

Plaintiff conducted a meat market in the town of Blanchard, in Page County, Iowa. He had in his employ one Andrew Johnson. His son, Ralph, a boy of about 13 years of age, was also employed to some extent about the business and the home. On a morning in January, 1912, the employee, Andrew, accompanied by the boy, drove a team and wagon to the slaughterhouse, a short distance north of town. It was necessary to such errand that they cross the track of the Wabash Railroad Company, and this they did by driving north on one of the streets of the town near and parallel to the line of the railroad, to a lane or way hereinafter more particularly described. Turning west at the lane, they followed it across the tracks to the slaughterhouse, and soon thereafter began their return trip over the same route. While crossing the track, they were struck by one of defendant's trains, Andrew being instantly killed, and the boy dying within a few minutes of the injuries so received. This action was later brought against the defendant for damages, on the theory that the death of the lad was caused by negligence of the defendants in operating the train.

As in the former case, the particular negligence specified is that the defendants failed to sound the statutory alarm as the train approached the street crossing just south of the lane where the collision occurred, and that the train was being operated at an excessively high rate of speed through the station grounds and yard, without proper care to watch for or protect the lives of those who might lawfully be using said lane. The defendants having taken issue upon the allegations of the petition, there was a jury trial and verdict and judgment for the plaintiff.

I. Appellants argue that there is no evidence of the exercise of due care by the deceased for his own safety and that he should be charged with contributory negligence as a matter of law. The proposition that there is no evidence of due care by the deceased is not sustained by the record. It is in evidence without dispute that the boy was a little less than 13 years old, and there is, moreover, no living witness who is able to testify as to what he did or failed to do by way of precaution against the fatal collision. Under the established rules of law prevailing in this state, there is a presumed incapacity for contributory negligence in a child under the age of 14, and, to defeat a recovery for his negligent injury, such presumption must be overcome by proof that he did not exercise the care and discretion usual or to be expected in children of a similar age. Doggett v. Chicago, B. & Q. R. Co., 134 Iowa 690, 112 N.W. 171; Hazlerigg v. Dobbins, 145 Iowa 495, 500, 123 N.W. 196; Long v. Ottumwa R. & L. Co., 162 Iowa 11, 142 N.W. 1008.

Where also, as in this case, there is no living witness who saw or knew what the deceased did or omitted to do by way of care or caution in entering upon the crossing, the law presumes that he exercised reasonable care for his own safety, and if reasonable care required him to stop or look or listen; it is presumed that he did so. Dalton, Admrx., v. Chicago, R. I. & P. R. Co., 104 Iowa 26, 73 N.W. 349; Lunde, Admrx., v. Cudahy, 139 Iowa 688, 117 N.W. 1063; Gray, Admr., v. Chicago, R. I. & P. R. Co., 143 Iowa 268, 121 N.W. 1097; Brown, Admrx., v. West Riverside Coal Co., 143 Iowa 662, 673, 120 N.W. 732; Stephenson, Admr., v. Sheffield Brick & Tile Co., 151 Iowa 371, 376, 130 N.W. 586; Korab v. Chicago, R. I. & P. R. Co., 149 Iowa 711, 717, 128 N.W. 529.

It follows that, with the facts from which these presumptions arise being conceded in this case, it cannot be said that there is no evidence tending to support the allegation that deceased was in the exercise of due care. It is true that neither presumption is conclusive, and both may be rebutted by proof of facts or circumstances from which it can properly be inferred that, though a child of less than 13 years, deceased did not use the care or caution for his own safety which may reasonably be expected from one of his age, capacity and experience. But the effect of such rebuttal is rarely so apparent or so convincing as to make the question one of law, and is to be passed upon by the jury. As said by us in the Brown case, supra:

"Such proof can rarely, if ever, be made so clear and unmistakable as to enable the court to dispose of the issue thus presented as a matter of law."

This case is no exception to the rule stated. Even if it should be said that Andrew, who was driving the team, was negligent, such negligence is not imputable to the boy, and constitutes no defense to the claim here sued upon.

It is unnecessary to consider whether, if the deceased had been of mature years, he would be justified in letting his confidence in the driver influence his own activity in looking out for danger; but we think it a safe proposition that a boy of 13 years, who, at most, is held to no greater care than may reasonably be expected of one of his age and experience, is not to be held chargeable with negligence as a matter of law, if, when riding in a vehicle driven by a man of mature age, under the circumstances here shown, he relies to some extent upon the driver's superior age, experience and judgment. See Stotelmeyer v. Chicago, M. & St. P. R. Co., 148 Iowa 278, 127 N.W. 205. It is not an answer to this suggestion to say that there is no testimony that he did so rely; for it is enough that, under the record as here made, the burden is upon the defendants to negative the presumption that he exercised the caution of the ordinary boy of his years, and, in the absence of evidence, it would be proper for the jury to consider that he might have been influenced by a reasonable reliance on Andrew. Upon a different state of facts, the principle here applied is approved in Korab v. Chicago, R. I. & P. R. Co., 149 Iowa 711, 128 N.W. 529.

Further discussion upon the question of contributory negligence as a matter of law is unnecessary. It is proper, however, to add that appellants rely, in this respect, largely upon the fact that, as they say, there was a space of from 2 to 8 or 10 steps immediately south of the track where, had the boy or driver looked to the south, the train would have been visible. The fact, if proved, is a pertinent one for the jury upon the question of contributory negligence, and the jury was properly instructed to give due weight to all the attendant circumstances in reaching its conclusion upon this issue. It certainly is not of itself conclusive of the boy's negligence. He was not driving the team. If the team was moving at even a moderate speed, it would pass over the interval of 2 to 10 steps very quickly, and the time it would take him to discover the danger and warn the driver, or to arise from his seat and spring from the wagon, if he had the presence of mind so to do, may well have been sufficient to bring him upon the track and into the collision. Certainly the court cannot assume to say that this young boy, in order to relieve himself from the charge of negligence, was bound to dismount from the wagon before it reached the open space and go ahead and make an inspection; and the simple fact that, at a particular point in the route, he might have discovered the train, is not alone sufficient to take the case from the jury. Moore v. Chicago, St. P. & K. C. R. Co., 102 Iowa 595, 71 N.W. 569; Spencer v. Illinois Cent. R. Co., 29 Iowa 55; Selensky v. Chicago, G. W. R. Co., 120 Iowa 113, 94 N.W. 272; Correll v. B., C. R. & M. R. Co., 38 Iowa 120.

There was no error in the refusal of the trial court to hold the deceased chargeable with negligence as a matter of law. Some of the precedents cited by the appellants announce rules which this court has distinctly refused to follow, while the others are not inconsistent with our conclusions here announced. The law, as we interpret it, has been well settled in this jurisdiction, and a review of the authorities would be simply to repeat what we have said on numerous prior occasions.

II. Counsel have given a separate paragraph of their brief to a re-argument of the rule relating to the presumption of due care based upon the instinct of self-preservation, where no witness is able to testify of his own knowledge with reference to the conduct of the deceased person alleged to have lost his life through the negligence of the defendant. In so far as the argument is designed to secure the overruling or modification of the rule as we have applied it in prior decisions, we have only to say that we are still satisfied with its essential justice and its soundness in principle; and, in so far as our attention is directed by counsel to the limitation of the rule by which it cannot prevail where the record otherwise shows that deceased could not have exercised reasonable care, it is still to be said that the...