Willfong v. Omaha & St. L. R. Co.

• Citation: 90 N.W. 358,116 Iowa 548
• Court: United States State Supreme Court of Iowa
• Decision Date: 13 May 1902
• Parties: WILLFONG v. OMAHA & ST. L. R. CO. (TWO CASES).

116 Iowa 548

90 N.W. 358

WILLFONG

v.OMAHA & ST. L. R. CO. (TWO CASES).

Supreme Court of Iowa.

May 13, 1902.

Appeal from district court, Page county; W. R. Green and A. B. Thornell, Judges.

The plaintiffs in these two cases are husband and wife, and were both injured at the same time by collision with one of the defendant's passenger trains at a highway crossing over its road. The negligence charged is the failure to blow the whistle and ring the bell for the crossing as required by law. It is conceded that the whistle was not sounded. Whether the bell was rung is a mooted question. The train was one which ran from Omaha, Neb., to St. Louis, Mo. It carried local and through mail, and on the night in question had passengers for points in Missouri. It is shown conclusively that when the train started on its run the engine whistle was in good working order, and also that it became disabled, so that it would not work, about 35 miles south of Council Bluffs; that the engineer and fireman both tried to fix it so that it could be used, but were unable to do so with the time and means at hand; that there was no division point where another engine could be obtained, nor any machine shop under control of the defendant where the whistle could be repaired between the point where its disability was discovered and that where the accident occurred. The plaintiffs were old residents of the neighborhood, and thoroughly familiar with the crossing in question, and with the regular time of this particular train. On the night in question it was about 30 minutes late. The plaintiffs were in a single-seated buggy, with the top up and the side curtains on. Just before the wagon road intersects the railroad, it passes through a cut some 12 or 14 feet deep, and the railroad also passes through a long cut of about the same depth immediately northwest of the highway crossing. The plaintiffs were traveling due south, and the wind was blowing strong from the south or southeast. When about 55 feet away from the railroad track the husband, who was driving, slowed the horse to a walk, and looked out in front of the carriage top, and at the same time listened for a train, but did not hear the approaching train. From where he then was, he could not see it, and he did not see or hear it until his horse was right to the track, when he made an effort to get across ahead of it, but failed. Verdicts were returned for the plaintiffs in both cases, and judgments rendered thereon, from which the defendant appeals. The cases are submitted to us together. Reversed as to the judgment in favor of the wife, and affirmed as to the husband.J. G. Trimble and G. B. Jennings, for appellant.

W. P. Ferguson, for appellees.

SHERWIN, J.

The defendant seeks to excuse itself from liability under the statute for failing to blow the whistle under the peculiar circumstances disclosed, and urges that, as it was engaged at the time in interstate commerce and in conveying the mail, it should not be held liable for running its engine without a whistle. The statute is mandatory, and is of undoubted validity as a police regulation of the movement of trains within this state. Nor can the regulation itself be justly said to interfere with interstate commerce, or to in any way attempt to regulate it. It is a police regulation providing for the safety of the public generally. It is not confined alone to the safety of persons who are traveling on the public highways of the state intersecting the railroad track, but it is for the protection of passengers on the defendant's trains as well. Is it unreasonable to hold that an engine drawing an interstate train shall not be run without a whistle when it is shown, as in these cases, that the loss thereof on the road did not occur through the negligence of the defendant? Keeping in mind the object of the statutory requirement, let us examine the authorities applicable thereto. In Railroad Co. v. Husen, 95 U. S. 470, 24 L. Ed. 527, Justice Strong, speaking for the court, said: “Many acts of a state may, indeed, affect commerce without amounting to a regulation of it in the constitutional sense of the term. And it is sometimes difficult to distinguish between that which merely affects or influences and that which regulates, or furnishes a rule of conduct. * * * While we unhesitatingly admit that a state may pass sanitary laws and laws for the protection of life, liberty, health, or property within its borders, * * * while, for the purpose of self-protection, it may establish quarantine and reasonable inspection laws, it may not interfere with transportation into or through the state, beyond what is absolutely necessary for self-protection. It may not, under cover of exerting its police power, substantially prohibit or burden either foreign or interstate commerce.” That in the exercise of their police powers the states may enact laws which affect commerce between the states, but which, for that reason alone, are not within the meaning of the constitution of the United States, is well settled. Railroad Co. v. Fuller, 17 Wall. 560, 21 L. Ed. 710;Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508;Burdick v. People, 149 Ill. 600, 36 N. E. 948, 24 L. R. A. 152, 41 Am. St. Rep. 329. In Tiedeman's State and Federal Control of Persons and Property (volume 2, p. 1053) it is said that: “So far as the regulation interferes with or imposes a burden upon interstate commerce and involves the exercise of an extra state power of control over the business of these corporations, it is only valid if it be exercised by the national government. * * * The police...