152 Iowa 579 | Iowa | 1911
Lead Opinion
I. Bordering on the Missouri river, between Pierce and Douglas, south of Second street, in Sioux City, is the baseball park. Large numbers of people, varying from a few hundred to several thousand, attend the games. In going and returning they pass along Pierce and Douglas streets, and freely over the ten or more railroad tracks, running east and west immediately north of the park, between that and Second street. These are switching tracks, save a main track of the Chicago, Milwaukee & St. Paul Railroad Company, and possibly another of defendant. The entrance to the park is from Douglas street near the northwest corner. Foul balls frequently passed over the inclosure of the park into the street or on the track space, and the boy who returned one of these balls was given as compensation for the service admission -to 'see the game being played. In the afternoon of July 25, 1905, plaintiff, who was then nearly sixteen years old, and one Soelsberg, some two years older, were at the fence on the west side of Douglas street, across from the park, with -a, view of gaining admission in this way. As a ball passed over, plaintiff started for it, running a little east of north, and did not stop until he had “kind of stumbled” at the track, caught himself before falling, and as he raised saw a train of defendant on him, coming from the west. He grabbed the iron on the east end of the east car, and held o'n until it had moved to a point one hundred and seventy feet east of Douglas street, when he fell off and was injured.
It may be conceded, for the purposes of our present discussion, that Douglas street was an open and well-recognized street, and that the defendant company was negligent in not keeping a lookout at its crossing thereof. But
The doctrine of last chance is founded on actual knowledge of the plaintiff’s negligence, and this court has-consistently so held in all cases where the facts were similar to the facts presented here, and such holding has been uniform in nontrespass as well as in trespass cases. Morris v. Railway Co., 45 Iowa, 29; Romick v. Railway Co., 62 Iowa, 169; Newman v. Railway Co., 80 Iowa, 679; Keefe v. Railway Co., 92 Iowa, 183, where it was said: “But when the negligent act whidh causes an injury is done after the negligence of the injured party is known to the other party, and the injury could have been avoided by the exercise of reasonable care on his part, there is an exception to the general rule, and the contributory negligence of the injured party will not defeat a recovery. This exception depends upon the failure of the person who is sought to be made liable for the injury to use reasonable care to avoid it, after the negligence of the other party is known. It is not sufficient that means of knowledge were available, and not used, unless in an exceptional case. To hold the defendant liable for the failure of its employees to' use due care to ascertain the danger which Keefe was in, without regard to his negligence, is to make the defendant absolutely liable for its failure to exercise due care, 'and to ignore the doctrine of contributory negligence. The care necessary to have discovered the presence of Keefe on the track was only a part of that which was due from the defendant to warn him of his danger, and to nvoid injuring .him. It can not be regarded as a separate and distinct duty;” Brown v. Railway Co., 92 Iowa, 413; Orr v. City Railway, 94 Iowa, 427, where this language was used in the opinion: “It is settled law in this state that plaintiff’s negligence will not enable defendant to escape liability, if the act which caused the injury
And in Ferguson v. Railway Co., 100 Iowa, 741, it was said: .“We do not mean to be understood as holding that if the' persons in charge of the engine failed to exercise ordinary care in stopping it .after they knew that plaintiff had missed his hold, or had slipped and fallen, that plaintiff’s contributory negligence would prevent his recovery. Such is not the case we are now considering. We have in mind a case where the engineer or fireman, or both, failed to keep a proper lookout, and, by reason thereof, ran down a person to whom they owed the duty of watchfulness to avoid injuring him. Applying the facts disclosed by this record to such a supposed case, it will be seen that the negligence of the defendant’s employees (conceding them to have been negligent in this resepct, for the purposes of the case), was not the sole cause of the injury. But for plaintiff’s concurring and cooperating fault, the accident would not have happened.”
In Purcell v. Railway Co., 117 Iowa, 667, Mr. Justice Ladd, speaking for the court, said: “There was evidence, then, from Which the jury could have concluded that the engineer saw Hunt on the bridge and in a place of peril, in time to have stopped the train and avoided the injury. Of course, it was not enough that he ought to have seen. It must appear that he actually saw or knew that he was in peril long enough before the engine reached him, to have enabled the employee to stop it before striking deceased from the track.” Barry v. Railway Co., 119 Iowa, 64; Oliver v. Railroad Co., 122 Iowa, 220, and
Dissenting Opinion
(dissenting). — I am unable to concur in what is said in the second paragraph of the opinion concerning the doctrine of last fair chance. It may be doubtful whether defendant, even if it could have discovered plaintiff’s peril, was in such a situation that it should be denounced as negligent in not so stopping its train as to have avoided the injury; but, in my opinion, it should not be held that actual knowledge of plaintiff’s peril was essential, in order to cast upon defendant the onus of exercising ordinary care for his protection thereafter. The majority are mistaken, as I think, in saying that this court is committed to the doctrine that actual knowledge is necessary, in order to render the defendant liable for subsequent negligence. It is not pretended that the proposition has ever been discussed by the court. Beliance is had on mere statements of the general rule, exacting knowledge, without inquiry, as to what is sufficient to charge the party complained of with knowledge.
In Keefe v. Railway, 92 Iowa, 183, on which the majority mainly rely, the decedent was standing in the track, doing nothing save looking in the opposite direction, when the train, without a lookout, backed on him, and the court held that the doctrine of last fair chance was not applicable, and so for the obvious reason that if defendant was negligent in not discovering decedent until the collision the latter was equally negligent in not observing the approach of the train. In other words, the negligence of each continued up to the time of the injury, and, as said
A careful examination of the decisions relied upon by the majority discloses that the proposition has not been foreclosed in this state by any previous decision, but that, on the contrary, several opinions have announced the rule that actual knowledge is not essential when the injured person is at a place at which he has a right to be. The rule that contributory negligence will defeat recovery appears to have been first distinctly announced in Butterfield v. Forrester, 11 East, 60, though not then as a novel doctrine. Explanation of the ground thereof as a legal principle appears in subsequent decisions. Perhaps the gradual development of the law as new conditions arose accounts somewhat for the treatment of the rule in Davies v. Mann, 10 M. & W. 546, as an exception to the general
When thus stated, it is apparent that the rule constitutes no exception to the general doctrine of contributory negligence, and does not permit one to recover in spite of contributory negligence, but merely operates to relieve the negligence of plaintiff, which would otherwise be regarded as contributory, from its character as such. This is accomplished by characterizing the negligence of defendant, if it intervenes between the negligence of the plaintiff and the accident as the sole proximate cause of the injury, and the plaintiff’s antecedent negligence as a condition or remote cause. If then the antecedent negligence of plaintiff be found merely a condition or remote cause, it can not be contributory, since it is well established that negligence, to be contributory, must be one of the proximate causes. Since the effect of the application of the rule then is to strip from the negligence of plaintiff the attribute expressed by. the' word “contributory,” it follows that there can be no liability for defendant’s subsequent negligence, unless and until it has been definitely determined that there has been some breach of duty on. the defendant’s part, intervening between the antecedent negligence of plaintiff and the accident. Manifestly, in order that defendant’s negligence shall be the sole proximate cause, the plaintiff’s negligence must have expended itself before the breach of defendant’s duty complained of; for if, notwithstanding defendant’s fault, plaintiff’s negligence continue to the instant of the accident, either the negligence of the parties is concurrent, or else plaintiff has had the last opportunity of avoiding the injury.
These views find support in Patterson’s Railway Accident Law, 91, where it is said that: “The rule has been misunderstood and misapplied. It means only that negligence upon the part' of plaintiff which bars his recovery from the defendant must have been a proximate cause of
A clear statement of the rule, regardless of nomenclature, has seemed necessary before determining the controverted question as to whether, to render defendant liable, it actually must have known of plaintiff’s peril in time to have avoided the injury by the exercise of reasonable care. This court has frequently held that where there was such knowledge defendant will be responsible for the exercise of ordinary care. See Sutzin v. Railway, 95 Iowa, 304; Brown v. Railway, 92 Iowa, 408; Conners v. Rail
And so of stock at a crossing. Wooster v. Railway, 14 Iowa, 593. In the last case the precise question was determined. Plaintiff was allowed to recover for injury to cattle at a highway crossing, although the person in charge of them was negligent; the court approving of an instruction that, if the company’s employees could have avoided the collision after the danger was, or, in the exercise of reasonable care, should have been, discovered, re
Beasonable means of knowledge is regarded as equivalent to .knowledge generally when there is -a duty to investigate, and this is no sound reason for not applying the rule to the doctrine of the “last fair chance,” . even though there may be cases to the contrary outside of this state.
In a note to Bogan v. Railway, 129 N. C. 154 (55 L. R. A. 418), will be found an exhaustive discussion of the doctrine of “the last fair chance;” the annotator concluding that the review of the decisions shows “a decided tendency on the part of the courts to apply the doctrine . . . to any omission of duty on the part of defendant, whether before or after the discovery of the peril in which the plaintiff or deceased had placed himself or his property by his antecedent negligence, if that breach of duty intervened or continued after the negligence of the other party had ceased.”
A perspicuous statement of the principle appears in Teakle v. Railway, 32 Utah, 276 (90 Pac. 402, 10 L. R. A. (N. S.) 486) : “There is much reason for the distinction that the railroad company should not be held liable in case of one, not a trespasser, exposed to peril through negligence, not only after the consequences of such negligence have been discovered, but which ordinarily could have been discovered, if there was a breach of duty
Enough has been said to indicate that, according to reason and the weight of authority, the defendant’s liability for injury resulting from any act or omission on its part after the cessation of plaintiff’s negligence depends solely on whether such act or omission constituted a breach of any duty then owing to the plaintiff, and the nature of that duty, whether to keep a lookout at a particular place, or becausé in a particular employment or situation,, or having actual or implied knowledge of the peril, is not material, so long as the act or omission constitutes a breach of duty. It is unnecessary now to discuss when negligence of the injured party should be said to have culminated, but see Bruggeman v. Railway, 147 Iowa, 187; note to Dyerson y. Railway, 7 L. R. A. (N. S.) 132; French v. Railway, 76 Vt. 441 (58 Atl. 722); Consumers’ Brewing Co. v. Doyle, 102 Va. 403 (46 S. E. 391); Kolb v. St. Louis Transit Co., 102 Mo. App. 143 (76 S. W. 1050) ; Pickett v. Railway, 117 N. C. 616 (23 S. E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611) ; Houston & T. C. R. Co. v. Sympkins, 54 Tex. 615 (38 Am. Rep. 632); Texas & N. O. Ry. v. McDonald, 99 Tex. 207 (88 S. W. 201); Butler v. Railway, 99 Me. 149 (58 Atl. 775, 105 Am. St. Rep. 267).
The obligation of the employees of a steam railway company to keep a lookout.at the street or highway crossings is precisely the same as that of the employees of a street railway company to keep a lookout for pedestrians and others in the use of the streets of a city, for that those on the crossing or in the streets are where they have a right to be, and in my opinion there is no ground whatever for saying, as was held in Barry’s case, and others following it, that means of knowledge is sufficient to charge the
Concurrence Opinion
I concur in the dissent expressed by Mr. Justice Ladd.