Martin v. Chi., R. I. & P. R. Co.

• Decision Date: 25 October 1902
• Citation: 91 N.W. 1034,118 Iowa 148
• Court: Iowa Supreme Court
• Parties: MARTIN v. CHICAGO, R. I. & P. R. CO.

118 Iowa 148

91 N.W. 1034

MARTIN

v.CHICAGO, R. I. & P. R. CO.

Supreme Court of Iowa.

Oct. 25, 1902.

Appeal from district court, Scott county; James W. Bolinger, Judge.

Action for damages. Judgment on directed verdict. The plaintiff appeals. Affirmed.E. M. Sharon and Ely & Bush, for appellant.

Cook & Dodge, for appellee.

LADD, C. J.

The freight train, composed of 13 loaded cars, 26 empties, and the caboose, was made up at Rock Island, from which place it departed at 5 o'clock in the morning. When it reached Perry street, in Davenport, a second engine or “helper” was attached, and together the two pulled the train west to Farnam, where the absence of the head brakeman was first discovered. Evidently he had fallen from the top of the train about 15 or 20 feet west of Fillmore street, in Davenport. The circumstances warranting this inference are; (1) A dint in the snow between the tracks at that place, as though a person had fallen some distance on the hip; (2) his lantern just outside of the track; (3) parts of his body and blood stains from that point to the place where the head and trunk were found. It may also be inferred that he fell between the third and fourth cars from the engine, for blood stains were found on the front trucks of the fourth car, and from there on back. The running board of the third car was about a foot wide, while that on the fourth car was a foot higher, and consisted of three strips about an inch apart, and projecting over at the end 5 or 6 inches. The tops were frosty, but upon examination no indications that he had slipped were discovered. The wind was blowing from the northwest, the direction the train moved, at a velocity of five miles an hour. The temperature was 11 1/2° above zero; the humidity of the atmosphere, 90 per cent. Fillmore street is one block west of the semaphore, two blocks west of Marquette street. Between these streets are five switches,--one at the semaphore, connecting with defendant's branch line to the southwest, and the others with tracks to local industries. From Perry street to Fillmore the road was slightly undulating, but from Fillmore street to Farnam, a block less than 2.7 miles away, the up grade was 47 1/2 feet to the mile. Opinions as to the speed of the train differ widely, but the jury might have found it anywhere between 12 and 25 or 30 miles per hour. All agree that it exceeded 6 miles an hour, the limit fixed by the ordinance of the city of Davenport. The defendant, then, was negligent in violating the ordinance, and the three grounds of the motion on which the jury were directed to return a verdict raise the questions: (1) Did such negligence occasion the injury to deceased? (2) Did deceased, by any fault on his part, contribute to his injury? And (3) had he assumed the risk of the high rate of speed at which the train was moving?

1. The ordinance of the city of Davenport prohibited trains from moving within the corporate limits at a speed exceeding six miles an hour. The evidence showed that it was customary on defendant's line for trains such as that in question to leave for the west at a much higher speed, in order to make the grade; and, as deceased had been engaged in work as brakeman something like seven months in all, he must have known of this practice. Of course, the mere fact that defendant habitually violated the ordinance does not relieve it from the imputation of negligence. Hamilton v. Railroad Co., 36 Iowa, 31;Beard v. Railway Co., 79 Iowa, 522, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381;Weber v. City of Creston, 75 Iowa, 16, 39 N. W. 126;Conners v. Railway Co., 74 Iowa, 383, 37 N. W. 966. Nor can it be said that ordinances of this character have for their sole object the protection of those having occasion to go on or across the tracks. They are not thus limited in their terms. Their benefit may be claimed by any person coming within their protection. Railroad Co. v. Gilbert, 157 Ill. 354, 41 N. E. 724;Railway Co. v. Eggmann, 170 Ill. 538, 48 N. E. 981, 62 Am. St. Rep. 400; Railroad Co. v. Moore (Ind. Sup.) 53 N. E. 290, 44 L. R. A. 638;Bluedorn v. Railway Co., 108 Mo. 439, 18 S. W. 1103, 32 Am. St. Rep. 615. Nevertheless the evident purpose in their enactment is to guard against injury to those using the streets, rather than the employés of the railroad engaged in operating the trains. In undertaking the work of brakeman with knowledge that the ordinance was ignored by the railroad company, or continuing at work without complaint after ascertaining the fact, did deceased assume the risk of the danger incident to its violation? The authorities are in sharp conflict on this proposition. Those holding that such a risk is never assumed go on the theory that, as the assumption of risk is based on an implied contract, it would be opposed to sound public policy to permit one to agree in advance to a violation of a statute or city ordinance. In Narramore v. Railroad Co., 37 C. C. A. 499, 96 Fed. 298, 48 L. R. A. 68, the statute enjoined on railroad companies the duty of blocking switches, and Judge Taft, after reviewing the decisions, concluded that: “ ‘Assumption of risk’ is a term of the contract of employment by which the servant agrees that dangers of injury obviously incident to the discharge of the servant's duty shall be at the servant's risk. In such cases the acquiescence of the servant in the conduct of the master does not defeat a right of action on the ground that the servant causes or contributes to cause the injury to himself, but the correct statement is that no right of action arises in favor of the servant at all, for, under the terms of the employment, the master violates no legal duty to the servant in failing to protect him from dangers, the risk of which he agreed expressly to assume. The master is not, therefore, guilty of actionable negligence toward the servant. * * * This makes logical that most frequent exception to the application of doctrine by which the employé who notifies his master of a defect in the machinery or place of work, and remains in the service on a promise of repair, has a right of action if the injury results from the defect while he is waiting for repair of the defect, and has reasonable ground to expect it. * * * If, then, the doctrine of the assumption of risk rests really upon contract, the only question remaining is whether the courts will enforce or recognize, as against a servant, an agreement, express or implied, on his part, to waive the performance of a statutory duty of the master, imposed for the protection of the servant, and in the interest of the public, and enforceable by criminal prosecution. We do not think they will. To do so would be to nullify the object of the statute. The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract, and it would entirely defeat this purpose thus to permit the servant to contract the master out of the statute. It would certainly be novel for a court to recognize as valid an agreement between two persons that one should violate a criminal statute, and yet, if the assumption of risk is the term of a contract, then the application of it in the case at bar is to do just that.” This is perhaps the clearest expression of the reasons persuading some courts to hold that in such cases the maxim, “Volenti non fit injuria,” will not apply. The point appears to have been touched upon in several English cases. See Thomas v. Quartermaine, 18 Q. B. Div. 685; Baddeley v. Granville, 19 Q. B. Div. 423. In the latter, a statute required a banksman to be present at the mouth of a pit when miners were going up and down. During the night it was the defendant's practice to dispense with him, and of this the plaintiff was aware. The injury was in consequence of this omission. The court held that plaintiff could recover; Wills, J., saying: “There ought to be no encouragement given to the making of an agreement between A. and B. that B. shall be at liberty to break the law which has been passed for the protection of A. Such an agreement might be illegal. * * * But it seems to me that if the supposed agreement between the deceased and defendant, in consequence of which the principle of ‘Volenti non fit injuria’ is sought to be applied, comes to this: that the master employs the servant on the terms that the latter shall waive the breach by the master of an obligation imposed on him by statute, and shall connive at his disregard of the statutory obligation imposed on him for the benefit of others, as well as of himself,--such an agreement would be in violation of public policy, and ought not to be listened to.” A careful reading of the opinions in Durant v. Mining Co., 97 Mo. 62, 10 S. W. 448,Grand v. Railroad Co., 83 Mich. 564, 47 N. W. 837, 11 L. R. A. 402,Coal Co. v. Taylor, 81 Ill. 590, and Boyd v. Coal Co. (Ind. App.) 50 N. E. 368, cited in the Narramore Case, discloses that, although the question might have been raised, it was not, in any of them. We think the learned judge, in writing that opinion, assumed too much, in treating the assumption of risk as purely a matter of contract. True, the books speak of it as resting on an implied agreement between the employer and employé. It is more accurate to say that the services of the one are engaged by the other, and from the relationship the law implies certain duties, obligations, and disabilities. No mention is made of these, but they pertain to the relationship of the parties and the status then assumed.

Says Mr. Dresser, in his valuable work on Employers' Liability (section 82): “The contract of hiring depends upon the same principles as other contracts, yet it has one peculiarity, in that it creates a...