169 Iowa 224 | Iowa | 1914
Plaintiff’s intestate, Willis King, was killed at a railway crossing of the Illinois Central Railroad, at a point between the towns of Clara and Ascott, in Pottawattamie County, Iowa, about five o’clock in the afternoon or evening of December 23, 1913. He was traveling in a top buggy drawn by a single horse, and with him was a young lady something over fifteen years of age. Deceased had started about seven o’clock in the morning of the day he was killed from the town of Blencoe, something like fifty-five miles from the place of the accident, to go to the town of Crescent to spend the holidays with his mother and a little son, who lived near the latter town. They arrived at the town of California Junction about noon, and were proceeding leisurely on their way and, generally speaking, in a southerly direction, until they got into Pottawattamie County where they were compelled to take a highway running a little north of east, which crossed defendant’s right of way at approximately right angles.
This crossing was from one-half to three-quarters of a
The horse had been walking slowly as they approached the crossing and did not increase his gait until just before a passenger train on defendant’s road struck the vehicle near the front end thereof, and apparently between the horse and the vehicle, knocking both from the track, the horse to one side of the track and the vehicle and its occupants to the other. The train which did the damage was a passenger train coming from the south, and it was running at the rate of approximately fifty miles an hour when the fireman discovered the horse and gave the engineer the alarm. The train which caused the accident ran some distance beyond the crossing before it was stopped, the witnesses differing widely in their testimony as to the distance; and when King was picked up after the collision it was found that he was dead. Defendant Fuhrman was the engineer in charge of the train.
The trial court submitted each of these allegations of negligence and specifically stated that;
“If it appears that said whistle was at least twice sharply sounded about thirteen hundred feet from the crossing in question, and the bell thereafter rung continuously until said crossing was passed, it would, in my judgment, be a compliance with the law as to said statutory signals, but if it appears from the evidence by the greater weight thereof that either of said statutory signals was omitted by the defendants, the failure to give such statutory signal would be negligence.
“As before stated, it is for you to say from all of the evidence bearing thereon whether said statutory crossing signals were given or not.
“If they were given, then your verdict must be in favor of the defendant, John Fuhrman, as in my judgment he is not shown by the evidence to be responsible for the other acts of negligence alleged, if such acts are shown in the evidence. If the whistle on the engine was twice sharply sounded where the defendant’s whistling post is situated or about thirteen hundred feet south of the crossing in question, and the bell rung continuously thereafter until said crossing was passed, it would, in my judgment, be a sufficient compliance with the statute, and in that event, as before stated, your verdict must*229 be in favor of tbe defendant Fubrman, but if the evidence shows, by the greater weight thereof, that said signals were not given, then both the defendant Fuhrman and the defendant railroad company would be guilty of negligence.”
The jury was then told that the other matters of negligence alleged had application only to the railway company, and that if they failed to find negligence of the defendant in either of the respects charged, their verdict should be for the defendants. In other words, the jury was instructed that its verdict might be against both defendants in the event the statutory signals were not given, but that no verdict could be returned against the engineer even though it found the defendant railroad company negligent, unless that negligence was the omission to give the statutory signals. The verdict, as we have seen, was against both defendants. We must assume that the jury followed the instructions and should consider the case from that standpoint. This eliminates one or more doubtful propositions in the ease and confines our inquiries to rather narrow fields.
*230 “A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed; but at street crossings within the limits of cities or towns the sounding of the whistle may be omitted, unless required by ordinance or resolution of the council thereof; and the company shall be liable for all damages which shall be sustained by any person by reason of such, neglect. Any officer or employee of any railway company violating any of the provisions of this section shall be punished by fine not exceeding one hundred dollars for each offense.” Code Sec. 2072.
It will be noticed that this section requires the giving of the signals and provides for both civil and criminal liability. The rule which generally obtains in this state is that the violation of a statute is in itself negligence, and that one injured in consequence thereof is entitled to recover, provided he himself is free from contributory negligence. As a rule it is no defense for one to show that his act or omission was while acting as agent or servant for another. As we view it the question here is not one of survival of actions or of providing a remedy for instant death, but rather whether the statute creates any civil liability on the part of the servant or employee guilty of the act or omission, and if not, whether any such liability would have existed at common law. Under our statutes all causes of action survive, and may be brought notwithstanding the death of the person entitled to the same; and the right of civil remedy is not merged in a public offense. Code Secs. 3443 and 3444.
Code Sec. 3445 also provides: “Any action contemplated in the two preceding sections may be brought, or the court, on motion, may allow the action to be continued, by or against the legal representatives or successors in interest of the deceased. Such action shall be deemed a continuing one, and to
Under these sections it has many times been held that, although the death be instant, nevertheless there is a right of action for the death which may be enforced by the representative of the deceased. Conners v. R. R., 71 Iowa 490; Worden v. H. & S. R. R., 72 Iowa 201; Donaldson v. R. R., 18 Iowa 280; Flynn v. R. R., 159 Iowa 571.
So that the fact that King died instantly has no bearing upon the ultimate liability of the engineer. No question is made regarding misjoinder of parties, and as we understand defendant’s contention here, it is that under the statute the engineer, although he violated the statute in question, cannot be held liable for the resulting damages, notwithstanding an express requirement that he give the signals.
As already suggested, it is the general rule that everyone who commits an unlawful act, injurious to another, is civilly liable therefor and cannot escape because he was an agent or servant of another. Mechem on Agency, Sec. 571; Blue v. Briggs, 39 N. E. 885.
The question of the joint and several liability of a railway company and its engineer, in running a train over a crossing without giving the usual and customary signals, is considered in many recent cases of the Supreme Court of the United States> and it is uniformly held that where the railway company is held liable because of the failure of its servant to perform a duty, whether that duty be imposed by the common law or in virtue of a statute enacted for the safety of travelers upon a highway, who are subject to the dangers from a railway crossing, both the company and the employee are liable, and may be joined as parties defendant. Alabama Ry. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161; Chesapeake Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67; C. N. O. & T. P. R. R. v. Bohon, 26 Sup. Ct. Rep. 166.
The liability for failure to exercise care so as to avoid injury was not created by statute; that existed at common law, but the nature of the care required and the signals to be given are defined by statute. The liability grows out of the fault of the agent, and he is responsible therefor without any statute expressly so declaring, unless it appears that the legislature expressly exempted him from liability, and such exemption should not arise from mere inference. As already suggested, -we do not appreciate the force of the argument that, as there was no liability at common law for the tortious act of a servant causing instant death, there can be none under a statute creating a liability for the wrong unless the statute defining the wrong so declares. The statutes creating liability for death are broad and comprehensive, and relate not only to injuries in which the party survives for an appreciable length of time, but also to those resulting in instant death; and, as suggested in the Donaldson cvase, supra, a statute imposing liability upon a corporation either civilly or criminally
Tbe fact that the statute imposes a criminal liability upon the servant for failure to give the signals is no reason for absolving him from civil liability; for under our holdings the violation of such a statute is in itself negligence.
II. It is argued somewhat strenuously that there is no testimony to support the allegations of negligence due to defendant’s failure to give the statutory signals; that such as there is in the record is merely negative in character, which is more than met by-positive testimony that these signals were given. The difficulty here lies in the premise that the plaintiff’s testimony was negative in character. There is affirmative testimony that such signals were not given, and the ultimate question was one of fact for a jury upon contradictory testimony. Hoffard v. R. R., 138 Iowa 543, and eases cited.
“In measuring the damages for the death of Willis King, if any are awarded by you, you should take into consideration so far as shown by the evidence his age at the time of his death, his health and strength, the probable length of life that was before him, the business he was engaged in, his habits as to sobriety and industry, and, so far as can be gathered from the evidence his earning capacity at the time of his death, and fix such fair sum as being now paid in a lump, and being freed from all of the contingencies and uncertainties that inhere in human life, will fairly compensate the estate of Willis King for what the estate has been deprived of in the way of accumulations that the deceased might have made had he lived.
“That is, it would be such a sum as being paid now, would be the fair present worth of what Willis King, had he lived, would probably have saved from his earnings, to his estate during his life, so far as said matter can be gathered from the evidence.”
V. Certain rulings on testimony are complained of. We do not set them out, for nothing would be gained from a discussion thereof. Suffice it to say, we see no error.
Finding no prejudicial error, the judgment must be, and it is — Affirmed.