Weber v. Chicago, Rock Island & Pacific Railway Co.

Citation151 N.W. 852,175 Iowa 358
Decision Date19 March 1915
Docket Number28053
PartiesL. A. WEBER, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO., Appellant
CourtUnited States State Supreme Court of Iowa

REHEARING DENIED THURSDAY, APRIL 6, 1916.

Appeal from Pottawattamie District Court.--A. B. THORNELL, Judge.

ACTION to recover for personal injuries. Defendant appeals.

Reversed.

F. W Sargent, R. J. Bannister and Saunders & Stuart, for appellant.

Popham & Havner and Flickinger Bros., for appellee.

GAYNOR J. EVANS, C. J., LADD, and SALINGER, JJ., concur. PRESTON, J., DEEMER, J., (Dissenting).

OPINION

GAYNOR, J.

This is an action to recover damages for personal injury claimed to have been sustained by the plaintiff through the negligence of the defendant. There was a trial to a jury, a verdict for the plaintiff, judgment on the verdict, and defendant appeals.

It appears that, on the 20th day of March, 1905, plaintiff was acting as mail clerk in the employ of the United States government, and, as such, was engaged in handling the mail on a mail car attached to and constituting a part of defendant's train. This train was known as the Rocky Mountain Limited, and this particular train, as No. 41; and it was proceeding westward at the time of the alleged accident. Shortly after leaving Homestead, a town on defendant's line, traveling at a speed estimated as high as 65 miles an hour, it left the track, and plaintiff was injured.

The negligence charged against the defendant, upon which plaintiff predicates his right to recover, is that, on said date and at the place where plaintiff was injured, the railway was in a dangerous condition for trains to pass over it, in that the dump and roadbed were defective, the ties rotten, the rails not properly spiked and clamped to the ties or sleepers, the fastenings loose thereon, the earth on the embankment soft and uneven, and the track uneven or low on one side, by reason of which the same was in an unsafe and dangerous condition, and this condition was known to the defendant and defendant's agents at the time, or had existed for such a length of time before the accident that it should have been known to the defendant by the exercise of reasonable care and inspection. It was further claimed that the defendant operated its train at too high a rate of speed, in view of the dangerous condition of the track and roadbed at the place of the accident. The answer was a general denial.

The evidence shows that this was a fast train, if not the fastest on the road. It was composed of the engine and six cars, attached in this order: tender, mail car, combination baggage and smoking car, a sleeping car called Egypt, another sleeper known as Vespasian, a chair car, and a combination sleeper and observation car. The train was made up from the engine to the rear end in the order above given. The plaintiff's run was from West Liberty to Omaha. The engine, tender, mail car, and combination baggage and smoking car left the track, and were hurled down to the bottom of the embankment. The two sleeping cars left the track, but were left in an upright position part way down the bank. The chair car remained on the top of the dump, but entirely off the track. The combination observation sleeping car was standing with the north wheels of the west trucks on the north rail, and the south wheels off the south rail, and the east trucks on both rails. It appears that the front trucks of the combination observation sleeping car, when it came to a standstill, were 15 feet east of where it is claimed by defendant that the rails became disconnected which dumped the train. The cars had run some distance before they headed down the embankment.

Plaintiff's witness, Hanks, who was in the mail car with the plaintiff at the time of the accident, testifies:

"Next to the chair car was the sleeping car. They were nearly in a straight line headed down the embankment. That night, the car I was in ran for some distance on the ties before it headed down the embankment."

It appears that the embankment was 18 feet across the top and 128 feet wide at the base.

There is evidence that the rail was not out of line on the north side of the track until a point was reached about 33 feet west of where it is claimed by the defendant that the ties were disconnected.

There is no question that, on the night this train was derailed, the plaintiff was in the mail car at the time, and was seriously injured.

The controversy between the parties is as to the cause of this derailment. The plaintiff claims that it was due to the negligence of the defendant, in that it did not make proper inspection of the road at this point, and allowed the roadbed to become in a condition dangerous for trains to pass over it; that the roadbed was defective, the ties rotten, the rails improperly spiked, the fastenings loose, the earth on the embankment soft and uneven, the track uneven and low on one side; and that this was the cause of the train's derailment.

The defendant claims that the roadbed, ties, rails, spikes and appliances holding them were in good condition immediately preceding the accident; that the south rail of the track, at the place where the injury occurred, was disconnected from the rail just west of it by one Eric Von Kutzlaben; and that the wreck was the result of his wrongful and wicked act in removing the spikes from the ties and disconnecting the two rails within a short time before the train arrived at that point.

These are the two theories upon which the case was submitted to the jury, each theory having some support in the evidence. The jury found for the plaintiff, thus rejecting defendant's theory of the cause of the accident.

This case is not triable de novo here, and it is not for us, nor do we assume, to try the case anew upon the facts submitted in this record.

The first proposition that confronts us upon this record is whether or not the plaintiff, at the time of the injury, was, in contemplation of law, a passenger on defendant's train, and, as such, entitled to invoke the rule that has been well recognized in this state and in other jurisdictions, touching the duty of a carrier towards the passengers upon its train.

Upon this point we have to say that we do not understand that the defendant seriously contends that the plaintiff, at the time, did not sustain to the company the relationship of a passenger. However, to entitle him to invoke this rule and to have the benefit of the law regulating the relationship between the carrier and its passengers, it must appear that he sustained that relationship. It is not easy to state a general rule nor to give a definition of the word "passenger" which would embrace all the essential elements. As said in 2 Hutchinson on Carriers (3d Ed.), Sec 997:

"The one usually accepted by the courts, when a definition has been attempted, is that a passenger is 'one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare, or that which is accepted as equivalent therefor.' This definition, however, like all others, is hardly comprehensive enough, for, as a general rule, every person, not an employe, being carried with the express or implied consent of the carrier upon a public conveyance usually employed in the carriage of passengers is presumed to be lawfully upon it as a passenger. There are two main elements in the legal definition of a passenger: first, an undertaking on the part of the person to travel in the conveyance provided by the carrier; and second, an acceptance by the carrier of the person as a passenger. Whether either or both of these elements exist is ordinarily a question for the jury."

Cavin v. Southern P. R. Co., 136 F. 592; Southern P. R. Co. v. Schuyler, 135 F. 1015; Illinois Cent. R. Co. v. Porter (Tenn.), 117 Tenn. 13, 94 S.W. 666.

In the further consideration of this case, we will treat the plaintiff as a passenger upon defendant's train at the time of the accident. It is, therefore, material to know what the reciprocal duties were that arose out of this relationship. It was the duty of the passenger to exercise reasonable care for his own safety; and to this end it must appear affirmatively that he did not, by his own negligence, contribute in any way to the accident complained of. There is an implied undertaking on the part of the defendant to deliver the passenger in safety at his destination, and to this end, the law imposes upon the carrier the duty of exercising the highest degree of care not to expose the passenger to any danger which human care and foresight could reasonably anticipate and provide against, and to exercise the highest degree of care and diligence reasonably consistent with the practical operation of its railroad and the conduct of its business, and if it fails in the discharge of this duty, and injury results, it is chargeable with actionable negligence.

In the case at bar, the plaintiff was injured by the derailment of the train. A presumption that the defendant failed in the discharge of its duty to the plaintiff arose when this was made to appear.

Of course, in all cases where the action is predicated on negligence, the burden of proof in the first place rests upon the plaintiff; but, as said in Pershing v. Chicago, B. & Q. R. Co., 71 Iowa 561, 32 N.W. 488:

"The rule which casts the burden of proof on the carrier is a rule of evidence, having its foundation in considerations of policy. It prescribes the quantum of proof which the passenger is required to produce in making out his case originally, and he is entitled to recover on that proof, unless the carrier can overcome the presumption which arises under the rule from the facts proven."

While the burden rests upon the...

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