Kenyon v. Illinois Central Railroad Co.

• Decision Date: 07 July 1919
• Docket Number: 32607
• Citation: 173 N.W. 44,187 Iowa 277
• Parties: HANNAH M. KENYON, Administratrix, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

173 N.W. 44

187 Iowa 277

HANNAH M. KENYON, Administratrix, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant

No. 32607

Supreme Court of Iowa, Des Moines

July 7, 1919

REHEARING DENIED OCTOBER 14, 1919.

Appeal from Buchanan District Court.--CHAS. W. MULLAN, Judge.

ACTION to recover damages for personal injuries resulting in death brought under the Federal Employers' Liability Act. Verdict and judgment for the plaintiff in the court below. Defendant appeals.

Affirmed.

R. W Hasner, Helsell & Helsell, Blewett Lee, and W. S. Horton, for appellant.

Dutcher, Davis & Hambrecht, Tourtellot & Donnelly, and V. L. Belt, for appellee.

GAYNOR, J. LADD, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

This case has been three times tried to a jury. On the first trial, the court directed a verdict for the defendant at the close of plaintiff's testimony, on the ground that the plaintiff had produced no evidence upon which the jury could properly find the defendant chargeable with negligence. An appeal was taken to this court, and an opinion filed, reversing the action of the trial court. Justice Weaver, speaking for the court, said:

"We are of the opinion, however, that the evidence, if believed by the jury, was sufficient to sustain a finding that the penstock was in a defective condition, that defendant had notice of such defective condition in ample time to have remedied it before the accident, and that its failure to remedy the defect was the proximate cause of the death of plaintiff's intestate; in other words, we hold that the plaintiff, upon the record as made, was entitled to go to the jury."

The court further said:

"This is an action under the Federal statute, and the contributory negligence, if any, of the deceased will not necessarily defeat a recovery by plaintiff, and the plea of assumption of risk is affirmative in character, and the plaintiff was not required to negative it in order to make a prima-facie case."

For a statement of the facts and the holding of the court, see 173 Iowa 484. This sent the case back to the district court for retrial.

A second trial was had in October, 1916, which resulted in a verdict for the plaintiff for $ 7,500. This verdict was set aside by the trial court, on motion of the defendant. A third trial was had in March, 1918, resulting in a verdict and judgment for the plaintiff for $ 8,000. It is from this trial and this judgment that the defendant brings this case here for reconsideration. The plaintiff's evidence is substantially the same, on this trial, as on the first trial. The finding of this court, therefore, that the evidence was sufficient, was binding on the trial court, on this court, and on the parties. If the plaintiff made a prima-facie case then, she has made a prima-facie case now.

We note that the first twelve assignments of error relied on by the defendant for reversal, involve the sufficiency of the evidence to justify the verdict and judgment. If plaintiff's evidence was sufficient to take the case to the jury, it cannot be said that there was not sufficient evidence to justify a verdict in favor of the plaintiff, if based on that evidence. We therefore, in the consideration of this appeal, must assume that the evidence on plaintiff's part, at the time plaintiff rested, was sufficient to make a prima-facie case, and to justify the submission of the case to the jury on plaintiff's showing, and that, on her evidence, the jury might find a verdict for her, if they believed her witnesses' version of the transaction. We therefore are not called upon to review the record touching this point again. See Johnson v. City of Ames, 181 Iowa 65, 162 N.W. 858; Bruce v. Galvin, 183 Iowa 145, 166 N.W. 787.

However on this trial, the defendant introduced evidence on its own behalf. This evidence, in its general scope and purpose, tends either to negative some matter claimed by the plaintiff, on which she relied for recovery, and to establish which she offered the evidence, or it tends to negative the legitimate inferences that might be drawn from her testimony in support of her contention. The balance of this evidence goes no further than to support defensive matters urged by the defendant as to which the burden of proof rested on the defendant. Now, the fact that the defendant has introduced negative testimony,--that is, testimony tending to negative the affirmative matter which plaintiff is bound to prove, or evidence which tends to negative the inferences that might be drawn from the evidence which plaintiff introduced,--does nothing more than to create a conflict between plaintiff's testimony and the defendant's testimony on these points. The burden was on the defendant to show that the plaintiff had assumed the risk to which his injury is traceable. The assumption of risk relied upon is not the ordinary assumption of risk, recognized as such by the general term "assumption of risk," but rather, the assumption of the added risk which arises when it is made to appear that the defendant has been guilty of some negligence out of which the risk arose. The defendant then escapes the consequences of its negligence, by showing that the risk was known to the plaintiff's intestate, and the hazards that attended the risk appreciated, and that he continued in the employment without complaint, and without promise of repair; for it is only on this showing that it can be said that he assumed the added risk incident to defendant's negligence, or waived the negligence. Plaintiff cannot be heard to complain of an injury that was traceable to the risk which deceased thus assumed. To establish this defense, the burden clearly, both in this state and under the Federal Employers'...