Pieart v. Chicago, Rock Island & Pacific Railway Co.
| Decision Date | 04 February 1891 |
| Citation | 47 N.W. 1017,82 Iowa 148 |
| Parties | B. F. PIEART, Administrator, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Cass District Court.--HON. H. E. DEEMER, Judge.
ACTION to recover damages because of alleged negligence of the defendant's agents and employes, causing the death of plaintiff's intestate without fault or negligence on the part of the deceased. The answer was a general denial. There was a trial by jury, a return of special findings, and a general verdict for the plaintiff for eighty-eight hundred dollars. The defendant's motion for judgment on the special verdict, and also its motion for a new trial, were overruled. The defendant appeals. Other facts necessary to be considered appear in the opinion.
Reversed.
T. S Wright, Cummins & Wright and R. G. Phelps, for appellants The question was, was the deceased in the exercise of proper care? The jury were told they could find he was in the exercise of proper care, if he believed he was in the exercise of proper care. This was manifest error. Muldowney v. Railroad, 36 Iowa 462; Deeds v Railroad, 74 Iowa 154. The continuance of the deceased in the employ of the defendant, after knowledge of the defect in the engine, imposed upon plaintiff the burden of proving that deceased objected and was promised an amendment. Coats v. Railroad, 62 Iowa 486. The employe assumes the risk, as increased by the defect, unless the master expressly or impliedly promises to remedy the defect. Indianapolis & St. L. Ry. Co. v. Walson, 14 N.E 721; Clarke v. Holmes, 7 Hurl. & N. 937; Smith v. Dowell, 3 F. & F. 238; Whart. Neg., sec. 221; Wilson v. Railroad, 31 Am. & Eng. R. R. Cases, 244. Between the time of the alleged promise and the accident, there was no time to make any repair, and the defect and danger being evident, deceased could not have relied upon the promise. Stephenson v. Duncan, 41 N.W. 337 (Wis.) . The conversation relied on contains no such request to remain; nor order to go on with the work. An order would not excuse the deceased. Mayes v. Railroad, 63 Iowa 562; P. C. & St. L. Ry. Co. v. Adams, 105 Ind. 151; Olson v. McMullen, 34 Minn. 94; Galveston Ry. Co. v. Tempe, 11 Am. & Eng. R. R. Cases, 201; Texas Pac. Ry. Co. v. Bradford, 66 Tex. 732; Moulton v. Gage, 138 Mass. 390; Hathaway v. Railroad, 51 Mich. 253; English v. Railroad, 24 F. 906; Youll v. Railroad, 66 Iowa 346. There was no competent evidence of a promise that would relieve deceased of the doctrine of waiver. There must be a promise. A mere complaint is not enough. The promise must be authoritative. Richardson v. Cooper, 88 Ill. 270, 274; Stroble v. Railroad, 70 Iowa 555; Bushnell v. Railroad, 29 N.W. 753; Baldwin v. Railroad, 29 N.W. 5; Little Rock Ry. Co. v. Miles, 13 Am. & Eng. R. R. Cases, 10; Wakefield v. Railroad, 117 Mass. 544; City of LaFayette v. James, 92 Ind. 240; Tucker v. Railroad, 54 Mo. 177; Brown v. Railroad, 67 Mo. 412; Mayberry v. Railroad, 75 Mo. 492; Marquette Ry. Co. v. Taft, 28 Mich. 289; Toledo Ry. Co. v. Rodriguer, 47 Ill. 188; Union Pac. Ry. Co. v. Springsteen, 21 P. 774; Gildersleeve v. Railroad, 33 Mich. 133; Volkman v. Railroad, 35 Am. & Eng. R. R. Cases, 204. If deceased could have avoided the risk by uncoupling before they started or after they stopped, there can be no recovery in this action. It was the duty of the deceased to have adopted the safer course, and, not having done so, there can be no recovery in this action. Lane v. Railroad, 69 Iowa 443; Wilson v. Railroad, supra; N. Y., L. E. & W. Ry. Co. v. Lyons, 13 A. 205; C. & N.W. Ry. Co. v. Donahoe, 75 Ill. 106; Foster v. Railroad, 84 Ill. 164; Riley v. Railroad, 27 W.Va. 145. To handle cars or machinery that are temporarily out of repair, is a hazard to which an employe may be subjected at any time. The existence of such peril while such car is at the place of repair implies no negligence upon the part of the company. Fraker v. St. P., M. & N. Co., 15 Am. & Eng. R. R. Cases, 256; Yeaton v. Railroad, 15 Am. & Eng. R. R. Cases, 253. The verdict is out of all proportion to the money value of the man's life. Rose v. Railroad, 39 Iowa 246; Collins v. City of Council Bluffs, 35 Iowa 432. The position that we have no standing in this court upon our motion for new trial, because by our motion for judgment non obstante we have waived it, is illogical. There is no inconsistency between the two motions. Baird v. Railroad, 55 Iowa 121; Baird v. Railroad, 61 Iowa 359; Williams v. Frick, 71 Iowa 362. A motion for new trial is not necessary in order to review any judgment or order of the court below. Code, sec. 3169; Beems v. Railroad, 58 Iowa 150; Coffin v. City, 26 Iowa 515; Presnall v. Herbert, 34 Iowa 539; Brown v. Rose, 55 Iowa 734.
L. L De Lano and F. B. Huckstep, for appellee: The defendant did not have the right to insist upon its motion for a new trial after electing to stand upon its motion for a judgment upon the special verdict. Nixon v. Downey & Wolverton, 49 Iowa 166. The deceased was not necessarily guilty of negligence because he did not avoid a known danger. Perigo v. Railroad, 55 Iowa 326; Lansing v. Railroad, 49 N.Y. 521; Belair v. Railroad, 43 Iowa 662; Crutchfield v. Railroad, 78 N.C. 300; Colorado Ry. Co. v. Ogden, 3 Colo. 499; Snow v. Railroad, 8 Allen, 441; Patterson v. Railroad, 76 Pa.St. 389; Green v. Railroad, 31 Minn. 248. Knowledge of a defect, without complaint or promise to repair, does not deprive the servant of his right of action unless a man of common prudence would not use it because immediate injury would be threatened by its use. Huhn v. Railroad, 4 S.W. 937; Hawley v. Railroad, 82 N.Y. 370; East Tenn., V. & G. Ry. Co. v. Duffield, 47 Am. Rep. 319; Flynn v. Railroad, 98 Mo. 195. The tenth instruction which is complained of is in nowise similar to the one given in Muldowney v. Railroad, 36 Iowa 462. Nor does this instruction proceed upon the theory of the lower court in Deeds v. Railroad, 74 Iowa 154. Here the jury was told that the belief of the decedent and his acts induced thereby must be either prudent or imprudent, accordingly as a reasonably prudent man would have believed and acted under like circumstances. The rule is, that if the deceased could reasonably expect to use the engine with care and diligence without sustaining injury he could rely upon the promise of repair. Conroy v. Iron Works, 62 Mo. 35. The law does not require an absolute promise to repair the defect. The defendant would be liable if it had induced the deceased to believe that it was the intention to remedy the defect. The assumption of the risk only follows as a result of the servants remaining after knowledge of the defect where he continues without objection, protest or complaint on his part; and there is no waiver if he has given notice that the defect exists, and that he desires its removal. Thorpe v. Railroad, 2 S.W. 3; Snow v. Railroad, 90 Mass. 44; Conroy v. Iron Works, 62 Mo. 35; Sioux City & P. Ry. Co. v. Finlayson, 20 N.W. 860; Keegan v. Railroad, 8 N.Y. 175; Patterson v. Railroad, 76 Pa.St. 389; Colorado Ry. Co. v. Ogden, 3 Colo. 499; Ford v. Railroad, 110 Mass. 240. A promise to repair is not necessary if protest has been made in such a way as to induce confidence that the defect would be remedied. Wharton on Neg., sec. 221; Shearman & Redfield on Neg., sec. 96; Kroy v. Railroad, 32 Iowa 357; Greenleaf v. Railroad, 33 Iowa 52; Perigo v. Railroad, 55 Iowa 326; Green v. Railroad, 31 Minn. 248; 2 Thompson on Neg., sec. 16, p. 1009. An implied promise to remedy the defect is sufficient. Ind. & St. L. Ry. Co. v. Watson, 14 N.E. 725. It was the duty of the defendant to provide safe machinery in the first instance, and keep it in good repair. Flike v. Railroad, 53 N.Y. 549; Corcoran v. Holbrook, 59 N. 517; 2 Thompson on Neg., sec. 11, p. 983; Coombs v. Cordage Co., 102 Mass. 572. The defendant was negligent in not supplying an engine with foot-boards. Frazier v. Railroad, 38 Pa.St. 104; Railroad v. Barber, 5 Ohio St. 541; 2 Thompson on Neg., sec. 2, p. 970; sec. 12, p. 992. Having failed in the first instance to furnish a reasonably safe appliance, it was not entitled to notice of the defect, as it had equal notice with the deceased. Lawson's Rem. & Prac., sec. 313; Wood's Mas. & Serv., sec. 326; Ind & St. L. Ry. Co. v. Estes, 96 Ill. 470; Hullehan v. Railroad, 32 N.W. 529; Konger v. Railroad, 11 N.E. 957. Notice to one whose duty it is to report to another, who is charged with the duty of making repair, is notice to the company. Brabbits v. Railroad, 38 Wis. 289; Hannibal & St. J. Ry. Co. v. Fox, 3 P. 320. Cain's negligence in failing to report the defective condition of the engine is the negligence of the defendant, and the defendant is liable to the servant under Cain if injured because of such negligence. Little Miami Ry. Co. v. Stevens, 20 Ohio St. 416, C. C. & C. Ry. Co. v. Keary, 3 Ohio St. 201; 2 Thompson on Neg., sec. 10, p. 981; Cayzar v. Taylor, 76 Mass. 274; Booth v. Railroad, 73 N.Y. 38. Cain was not the fellow-servant of the decedent, but was a vice-principal. Louisville Ry. Co. v. Bowler, 9 Heisk. 866; Grizzle v. Frost, 3 Fost. & F. 622; Dowling v. Allen, 41 Am. Rep. 298; Railroad v. Ross, 5 S.Ct. 184; Palmer v. Railroad, 13 P. 25; Mason v. Machine Works, 28 F. 228; Wabash & St. L. Ry. Co. v. Ilawk, 12 N.E. 253; Chicago & St. P. Ry. Co. v. Lundstrum, 20 N.W. 198; Theleman v. Moeller, 34 N.W. 765; Braun v. Railroad, 53 Iowa 595; Reddon v. Railroad, 15 P. 262; East Tenn., V. & G. Ry. Co. v. DeArmond, 6 S.W. 600; Tabler v. Railroad, 5 S.W. 810; Forians v. Railroad, 4 S.E. 339; C. & A. Ry. Co. v. May, 15 Am. & Eng. R. R. Cases, 320; Gilmore v. Railroad, 15 Am. & Eng. R. R. Cases, 304; King v. Railroad, 14 F. 277; Hough v. Railroad, 100 U.S. 313; Railroad...
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