68 Iowa 751 | Iowa | 1886
There was an entry or slope into the mine which was several hundred feet in length. When -cars were loaded in the rooms, they were drawn by mules to the slope, and from six to ten cars were then hitched together, and drawn out of the mine to the dump by an engine located out
Counsel for the appellant contend that there is no ambiguity in the statute, and that the deceased clearly comes within the language of it. They further contend that, while in construing a statute the intention of the legislature should be sought, yet that no construction can be adopted which conflicts with,
It appeax’s from the evidence that some person always accompanied the cars when trips were made. This was not only proper, but essential. The cars frequently got off the track, and other accidents were liable to occur, and it was the duty of the person in charge to prevent such accidents if he could, and promptly give notice to the engineer in charge of the engine, and other employes, when one occurred. At the time he was killed, the deceased was employed in the discharge of such duty, as directed by defendant’s superintendent. The language of the statute is broad and comprehensive, and the deceased was clearly within the lettex-, but this does not conclusively establish that he was within the intent, of the statute. One of the cardinal rules for the construction of statutes is to search out the intent of the legislature, and adopt the sense which will be in hax’mony with the statute as a whole. The meaning of certain words, when read alone, may be entirely clear, but when the context is read, and the object of the statute is ascertained, there may not only be ambigxxity in the particular words, but an entirely different meaning correctly adopted than would have been proper if the particular words stood alone. Another rule of construction is that a “ thing within the intention is within the statute, though not within the letter, and a thing not within the letter is not within the statute unless within the intention.” Potter’s Dwar. St., 144. The inquiry, therefore, is whether it was the intent of the legislatxire that, although the decedent was in the performance of a necessary duty which the defendant required him to perform, he should be punished criminally for such an act. It will be observed
Counsel for appellee suggest a pertinent inquiry. Suppose a statute made it a misdemdanor for any person to stand upon the platform of a car forming a part of a passenger train drawn by an engine, would such a statute embrace and be held applicable to a brakeman, whose duty it was to set the brakes, and who therefore must necessarily ride on the platform for at least a time? We are clearly of the opinion that it would not, and yet he clearly would be within the letter of the statute. Possibly it is within the power of the legislature to make one guilty of a misdemeanor when engaged in the performance of a necessary duty, but in such case the language used should be clear and undoubted, and such a statute would probably, in express terms, prohibit the performance of the supposed duty in a particular manner; and it may well be supposed that, if it had been the legislative intent to include conductors of trips, it would have been so said in express terms.
The statute in question was amended by the enactment of chapter 21 of the Acts of the Twentieth General Assembly, and section fifteen thereof is substantially indentieal with the same section in the statute we have been considering, except that it therein is expressly provided that it shall not
IT. The fifth, sixth and seventh paragraphs of the charge are objected to. We do not deem it necessary to set them out. In our judgment they are clearly cor- ’ rect. The eighteenth paragraph of the charge is as follows: “The fact that an employe knows, or could know by the exercise of ordinary care, of defects in the appliances about which he works, which render his employment or duties more than ordinarily hazardous, or increases the hazard, and still remains in the employment until he is injured, tends to show contributory negligence, but is not conclusive evidence of it.” The latter part of this instruction is objected to. The instruction seems to confound contributory negligence with waiver. While counsel call attention to this fact, they do not claim that the instruction is prejudicially erroneous in this respect. Their contention is that the matters stated are conclusive evidence of waiver, instead of simply so tending, as the court thought. As applied to the uncontroverted evidence in this case, we are unable to say that the instruction is prejudicially erroneous. The deceased never had acted as conductor until the morning he was killed. He had not made more than one or two trips. We therefore do not think that it should be conclusively presumed that he waived defects in the construction of the slope. At least some period
Aefirmed.