Way v. Waterloo, C. F. & N. R. R.

• Decision Date: 16 December 1947
• Docket Number: 47095.
• Court: Iowa Supreme Court
• Parties: WAY v. WATERLOO, CEDAR FALLS & NORTHERN R. R. et al.

29 N.W.2d 867

239 Iowa 244

WAY v. WATERLOO, CEDAR FALLS & NORTHERN R. R. et al.

No. 47095.

Supreme Court of Iowa

December 16, 1947

Rehearing Denied Feb. 13, 1948.

R W. Zastrow and W. K. Carr, both of Charles City, and Harris Van Metre & Buckmaster, of Waterloo, for appellant.

Swisher, Cohrt & Swisher, of Waterloo, for appellee Waterloo, Cedar Falls & Northern R. R.

McCoy & Beecher, of Waterloo, for appellee Ralph D Foley.

MULRONEY Justice.

On December 7, 1944, a truck owned by the defendant, Ralph D. Foley, was proceeding north on Lake Street in Waterloo, Iowa. At a place where the tracks of the defendant, Waterloo, Cedar Falls and Northern Railroad, cross said street the truck and an electric engine of the railroad met in collision. Maurice K. Beckner, a switchman employed by defendant railroad, who was riding on the running board of the engine, received injuries in the collision from which he died four days later. His wife, now Mrs. Way, as executrix of his estate, brought suit against the railroad and Foley. Her petition as amended sought recovery from both on the ground of their negligent operation of the truck and train proximately causing the accident and consequent death of decedent. It was alleged in the petition as amended that the train was being operated in interstate commerce at the time of the accident and that the action as against the defendant railroad 'is brought under the Federal Employers' Liability Act (45 U.S.C.A. § 51, et seq.).'

The defendant railroad moved for separate trial on the ground that 'complications and confusions' would arise in the trial if it should be allowed to proceed as to both defendants so as to prevent the railroad from obtaining a fair trial. The motion pointed out that recovery was sought as to the railroad under the Federal Employers' Liability Act and as to Foley under statutory and common law; that the evidence necessary to make out a case against each would be substantially different; that it would be necessary to give the jury substantially two separate sets of instructions; that the interests of the defendants are so adverse that confusion will necessarily arise in the exercise of challenges and strikes in the selection of a jury; and that during the course of the trial evidence would undoubtedly be offered which would be admissible as against one and inadmissible as to the other and the making of objections and the court's rulings would tend to confuse the jury.

The trial court sustained the railroad's motion as to all the grounds stated therein and then stated: 'Case against defendant Ralph D. Foley to be tried first, commencing at 2 P.M., October 14, 1946.' The theme of this opinion will be a review of the trial court's ruling on the railroad's motion for separate trial, but let us first glance at the evidence that was introduced in the trial of the case against defendant Foley.

The collision occurred around noon of December 7, 1944. The railroad motorman testified he was backing across the street in an easterly direction and traveling 5 or 6 miles an hour. The electric engine was pulling 6 or 7 cars. He knew Mr. Beckner, the switchman, was on the rear running board of the engine. He was on the north side of the cab. He stated: 'I did not see the Foley truck until he was right back of the motor. Just as I turned around I saw the cab of the truck going by the motor and roll Mr. Beckner on the ground * * * I was not facing the direction the train was backing up. I was looking both ways but facing north. We were going east about 5 or 6 miles an hour. I first knew the accident happened when I saw the truck back of the motor and had rolled Mr. Beckner off. When I first saw the front end of the truck it was up to the cab of the truck. The front end had gone by. I could not see how fast it was going at all. The truck was on the track before I saw it. I was paying attention to people crossing the street. I did not see the truck at all until it was on the track. I was looking both ways. I had looked in the direction of the truck a few minutes before.' There was other evidence given by the motorman and other railroad employees that the bell on the train was ringing and that Mr. Beckner's duties were to watch the trolley. It was explained that in backing up the trolley was being pushed ahead of the motor and sometimes it might come off.

The defendant Foley testified he was driving a 1938 International truck with a stock rack. He had unloaded hogs at the packing house and then cleaned out his truck at the manure dump about a block south of where the accident occurred. As he proceeded north toward two sets of tracks he noticed refrigerator cars standing on the south track, on the west side of the street. The streets were covered with snow and ice and he estimated his speed at 10 to 15 miles an hour. He stated: 'As I started across the south track I was looking west to my left. I looked continuously from the time I approached that intersection until the time of the collision. When I first saw this train approaching the front end of my truck, the bumper was practically on the south rail of the north track. That was when I first saw the train approaching. I had been looking to the left all of the time and was listening. I did not hear any bell ringing or whistle. The window of my truck was closed. The door was closed. I had approached intersections before. When I first saw this motor approaching from the left, I would say it was 20 feet from the west side of Lake Street. I threw the car into second and stepped on it and tried to get across. Because the front end was practically on the track and it was slippery and I could not stop, so I thought the only way was to get ahead of it. From the time I first saw it and sped up to get across, I could see 20 to 25 feet to the left. This train was on the north track. When the motor struck the truck the back end skidded around to the north. I did not see anyone standing on the rear end of the motor. I did not see the man that was injured (Beckner) at any time before the collision. I saw Mr. Beckner after the collision. He was lying on the east side of the road on the ground on Lake Avenue. I would say about 10 feet from the north rail of the north track. I stopped from 60 to 75 feet from the track.' Foley's wife and 14 year old son who were riding with him corroborated his testimony.

The jury, after hearing arguments of counsel and instructions of the court returned a verdict for defendant Foley.

I. All authorities agree that joint tort-feasors are jointly and severally liable for injuries caused by their concurring negligence. The rule stated in Restatement of Torts, sec. 879 is: '* * * each of two persons who is independently guilty of tortious conduct which is a substantial factor in causing a harm to another is liable for the entire harm, in the absence of a superseding cause.' See, 62 C.J. Torts, sec. 44; McDonald v. Robinson, 207 Iowa 1293, 224 N.W. 820, 62 A.L.R. 1419.

II. Since joint tort-feasors are jointly and severally liable they are suable jointly or in separate actions at the injured party's election. The rule stated in Restatement Torts, sec. 882 is: 'Where each of two or more persons is liable for the full amount of damages which are allowed for a single harm resulting from their tortious conduct, the injured person can properly maintain a single action against one, some, or all of them.' See also 62 C.J., Torts, § 44.

III. The railroad admits the soundness of the foregoing propositions. It is stated in their brief: 'This action was properly commenced under the Rules of Civil Procedure by joining both defendants in the same petition, and the cause would have proceeded to trial against both had no motion for separation been filed.' Of course the rules of civil procedure and the statutes superseded by the rules were not designed or intended to take away any rights of joinder of defendants that a party would have had at common law. Rule 24, Iowa Rules of Civil Procedure is entitled, Permissive Joinder of Defendants, and it provides that 'any number of defendants may be joined in one action which asserts against them, jointly, severally or in the alternative, any right to relief in respect of, or arising out of the same transaction, occurrence, or series of transactions or occurrences, when any question of law or fact common to all of them is presented or involved.'

A study of the rule and the statutes it supersedes would seem to indicate that if plaintiff would have had the right to so sue both jointly at common law the statutes and rules were designed to preserve that right and broaden and extend the right of joinder to other fields of litigation. One of the statutes superseded by our civil rules of procedure is section 10972, Code 1939, and an antecedent statute to section 10972 is section 2761, Revision of 1860 which provided: 'Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff; or who is a necessary party to a complete determination or settlement of the question involved in the action.' The first comment on the foregoing statute found in the Revision is: 'This section was borrowed from the chancery practice, and it was intended to preserve the right and duty of a plaintiff to make parties, all persons directly interested in the question or controversy stated in the complaint.' See, Iowa Lillooet Gold Mining Co., Limited, v. Bliss, et al., D.C., 144 F. 446, 453.

We need not trace the law down through succeeding codes. It is perfectly clear that each succeeding change in the statute was designed to extend that permission which was perserved in the earliest statute. A reading of the rule will show that it is much more liberal than the statutes that...