Way v. Chi., R. I. & P. Ry. Co.
| Decision Date | 15 December 1887 |
| Citation | 73 Iowa 463,35 N.W. 525 |
| Court | Iowa Supreme Court |
| Parties | WAY v. CHICAGO, R. I. & P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Mahaska county.
Action by Richard F. Way, administrator, for the recovery of damages for injuries sustained by plaintiff's intestate while traveling on one of defendant's trains. It is alleged in the petition that the injuries complained of were caused by the gross negligence of defendant's employes who were in charge of the train, and that they caused the death of the intestate. There was a verdict and judgment for plaintiff, and defendant appealed.
ADAMS, C. J., dissenting.1T. S. Wright and Lafferty & Morgan, for appellant.
John F. Lacy and Wm. R. Lacy, for appellee.
1. The suit was instituted by the intestate in his life-time. It was alleged in the petition that he was a passenger on the train at the time of the injury, and that the employes of defendant in charge of the train, while switching, caused the cars to collide violently, whereby he was thrown with great violence against the cupola platform in the caboose in which he was at the time, inflicting the injuries complained of. On the trial of the issue joined on these allegations, it was proven that the intestate was riding on a commutation ticket which had been issued to another person, and which contained a condition against the assignment thereof, and that the conductor of the train, when he took up the coupons for the fare of the intestate, had no knowledge that he was not the person named in the ticket. On appeal it was held by this court that, upon that state of facts, the relation of the carrier and passenger was not created between the parties, and consequently that defendant could not be held liable on proof of that slight degree of negligence upon which it would have been chargeable if that relation had existed. See Way v. Railway Co., 64 Iowa, 51, 19 N. W Rep. 828. When the cause was remanded, plaintiff filed an amendment to his petition, retaining the allegations of the original petition, and alleging, in addition thereto, that the injury was caused by the gross negligence of the employes in charge of the train. On the second trial the proof as to the circumstances under which the intestate was on the train was the same, and counsel for the defendant, by motion to direct a verdict and instructions as requested, asked the circuit court to rule that the petition was unproved in its general meaning. The position of counsel is that, as it was distinctly averrred in the petition that the intestate was a passenger on the train at the time of the injury, there could be no recovery without proof of that fact, and consequently, as there could be no pretense under the facts proven, and the former holding of this court, that the relation of carrier and passenger existed between the parties at the time of the injury, the court erred in refusing to direct the jury to find for defendant. But we think this position is not maintainable; for, while the defendant would have been liable if intestate had been a passenger, and the injury had been occasioned by but slight negligence on its part, it would also, under the statute, (Code, § 1307,) be liable, even though that relation did not exist, if the injury was caused by the gross negligence or mismanagement of the employes in charge of the train; so that the allegation that he was a passenger was redundant if plaintiff relied upon the averment of gross negligence, as, also, was that averment if he relied upon the allegation that intestate was a passenger. The petition, then, alleges two states of fact, upon either of which defendant would be liable, and some of its averments, while material to one of these, are redundant as to the other. And plaintiff was entitled to recover if he had established either of them, even though he had failed to prove the allegations which as to it were redundant. Possibly he could have been required, upon proper motion, to strike out one of the averments, or to plead the two states of facts in separate counts; but no such motion was made. Very clearly, we think, his right of recovery was not defeated alone by the failure to prove the allegation that the intestate was a passenger at the time of the injury.
2. The train was at Otley when intestate received the injury. The engineer and a brakeman were engaged in switching at the time. The caboose and 11 freight cars were left standing on the main track, while a number of cars were being cut out of the train and thrown upon a side track. When this work was done, and the engine and remaining cars...
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