68 Iowa 470 | Iowa | 1886
Lead Opinion
The accident in which decedent lost his life occurred at Mason City Junction, between nine and ten o’clock on the evening of the twenty-first of June, 1881. Defendant’s railroad runs north and south, and at the place where the accident occurred it crosses the main line of the Chicago, Milwaukee & St. Paul Nailway. This latter company has a yard situated about one-half mile west of the crossing, and a branch road operated by it, and .known as the “ Austin Branch,” runs in a north-easterly direction from this yard, crossing defendant’s track some distance north of the point where it crosses the main line of the other road. On the east side of defendant’s road there is a track called the “ Transfer Track,” which is used in transferring cars from one road to the other. This track connects with defendant’s road at a point about eighty feet north of the crossing, and with the track of the Austin Branch some distance northeast of the point where it crosses defendant’s road.
The companies used a common depot, which is situated in the angle west, of defendant’s track, and north of the main line of the other road. The train in which plaintiff’s intestate was traveling came from the south. When it approached the station it was stopped at a point about 500 feet south of the crossing. There was no train due at that hour on the other road, and none was within sight or hearing of defend
At about the time the train arrived at the station, the employes of the Chicago, Milwaukee & St. Paul Company were engaged in getting the engine which was to haul the train to St. Paul out of the yard west of the crossing, and they found it necessary, in order to permit the passage of the engine on the track of the Austin Branch, to move a number of cars from a side track onto the main track. There is a sharp down grade in the main track from a point east of the yard to the crossing. A portion of the cars were pushed onto this grade, and five of them, which were loaded, parted from the others, and ran down the grade to the crossing, striking the passenger car, in defendant’s train, which stood on the crossing, with sufficient force to throw it from the
In effect, the jury are told by this instruction that, in determining the question whether defendant was guilty of negligence in permitting the train to stand upon the crossing, they might consider the fact that the baggage and express matter could be more conveniently discharged at that point than at the one at which it would have been discharged if the train had not been stopped until all of the cars had passed over the crossing. This is clearly wrong. The duty which defendant owed its passengers was to so manage the train as that they would not be exposed to any danger which human foresight and eare could apprehend and provide against. And the question whether it was an act of negligence to stop the train upon the crossing depends entirely upon whether the passengers were thereby exposed to such danger; and in determining that question it is manifest that the fact that, by stopping the train at that point, the baggage car was placed in such position with reference to the baggage-room as that the express matter and baggage could be conveniently handled, is entitled to no consideration whatever. It has no tendency to prove that the passengers in the car were exposed to such danger by the stopping of the train at that point, or to disprove it.
There was also evidence tending to prove that iff a flagman had been sent a short distance west of the crossing he might, by climbing upon the cars which collided with the train, and applying the brakes, have stopped them before they reached the crossing. Plaintiff had the right, under the pleadings and evidence, to have the jury pass upon the question whether defendant was negligent in omitting to take proper precaution to protect the train, while it stood upon the crossing, from dangers of the character of that which occasioned the injury complained of. The instruction, however, told them that the only act of negligence which was
As a matter of convenience in the transaction of its business at the station, defendant stopped its train upon the crossing, ánd kept it standing there while the transfer of baggage was being made. While standing there it was liable to be
We do not find it necessary to determine whether this position, that the statutes of the state give no remedy for the death of a human being, is sound or not. It is conceded that, if a cause of action accrued in favor of Carter for the injury which caused his death, it survived, and may be maintained by his representatives. And, in our opinion, the special finding does not determine that such cause of action did not accrue to him before his death. The finding is that “ his death was of that nature commonly known as instant death.” A death is not necessarily instantaneous in fact because it is of that nature. If the injury which caused the death is necessarily fatal, and death results in a few moments from it, it would no doubt be commonly called an instant death; but, as the person survived the injury for that brief period, it cannot be said that' the death was instantaneous. The evidence shows that Carter survived the injury for a few moments. He was not found for some time after the collision occurred, but life was not extinct when he was found. He still breathed, although he died before he could be removed from the wreck. His death, then, was not simultaneous with the injury which caused it. It was not, in fact, instantaneous, although of the character commonly known or designated as instant death. As he lived after the injury, we are of the opinion that, if it was occasioned by the negligence of the defendant, a cause of action therefor accrued in his favor. It can make no difference, we think, that the period of time between the injury and his death was short.
In determining whether a cause of action accrued to him, the test is whether he lived after the injury, and not the length of time he lived thereafter. If he survived the injury
We think, however, that the special findings in question do not determine either that Carter was guilty of contribu
All we determine is that the special finding by the jury, that the position occupied by him at the time of the collision
Affirmed.
Rehearing
SUPPLEMENTAL OPINION ON PETITION FOR REHEARING.
It is insisted, however, that the holding in that respect is not in harmony with what was held in Sherman v. Western Stage Co., 24 Iowa, 515. No inference is made to that case in the opinion, for the reason that our attention was not especially called to it. That was an action by an administrator for damages on account of a personal injury which caused the death, of the intestate, and the question whether a right of action accrued in favor of the decedent during her life-time on account of the injury was important, because of its bearing on the question as to when the statute of limitations began to run. The injury in that case was caused by the overturning of a boat in which the deceased was being transported,
Our holding in the foregoing opinion is clearly not in accord with that view. If it could be said that that holding established a rule of property, we would not perhaps be justified now in questioning its correctness, however unsatisfactory it might appear to us to be. But the question is not of that character. No property rights or interests are affected by it, and the position appears to us to be so clearly untenable that we think it ought not to be adhered to. The reasoning of Judge Cole, who wrote the opinion, but did not concur in the conclusion, appears to us to be conclusive on the question; and, in addition to what is said by him in the opinion, we deem it necessary only to add that it seems to us impossible (unless such result is produced by operation of positive statute, or follows as a consequence of the judgment of a competent court) that there should be a termination of the legal rights of an individual before his death. So long as his life lasts, he is under the protection of the law, and retains every right and benefit granted by it. The estate of the decedent, Carter, did not-descend to his representatives until his death. Until that moment it was vested in him. He was capable, during the brief period that elapsed between the injury and his death, of taking by inheritance. If a weaker person than lie had been involved in the same catastrophe, and had lost his life by the same means, the law, for the purpose of fixing the course of descent, would, in the absence of proof on the question, have presumed that he survived the weaker individual. It would have recognized that, for that brief moment, he was vested with a perfect right to the property, and would have disposed of it accordingly; and if the injury suffered by