84 Iowa 455 | Iowa | 1892
On the night of October 24, 1889, the plaintiff’s intestate, William J. Webber, while crossing the defendant’s railway on a public crossing with his team and wagon, was killed by driving off the embankment or approach from the highway to the-
“Section 1262. Any such corporation may raise ór lower any turnpike, plank-road or other highway for the purpose of having its railway cross over or under the same; and in such cases said corporation shall put such highway, as soon as may be, in as good repair and condition as before such alteration.”
“Section 1288. Every corporation constructing or operating a railway shall make proper cattle guards where the same enters or leaves any improved or fenced land, and construct, at all points where such railway crosses any public highway, good, sufficient and safe crossings and cattle guards, and erect at such points, at a sufficient elevation from such highway to admit of free passage of vehicles of every kind, a sign, with large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of looking out for the cars; and any railway company neglecting or refusing to comply with the provisions of this section shall be liable for all damages sustained by reason of such neglect and refusal; and in order for the injured party to recover, it shall only be necessary for him to prove such neglect or refusal.”
The district court, in separate paragraphs, instructed the jury as to a right of recovery under these sections, holding that the issues presented a cause of action under each; and as to a right of recovery under section 1262 the court said, “Under this statute and paragraph the plaintiff cannot recover if the evidence discloses that any negligence on the part of the said William J. Webber contributed to produce the injury.” As to a right of recovery under section 1288 the court, after stating the facts that would render the company liable because of a neglect to properly make and keep the crossing in good repair, said: “Contributory negligence is not a
This view of the law is based on the language of section 1288, as follows: “And any railway company neglecting or refusing to comply with the provisions of this section shall be liable for all damages sustained by reason of such neglect and refusal, and, in order for the injured party to recover, it shall only be necessary for him to prove such neglect or refusal.” The plain import of the language is that, if the plaintiff proves that he was injured at the crossing, and that the company had neglected to properly construct it, the law will presume that the injury was the result of the neglect. The language of the section only makes the company liable when damages result “by reason” of neglect. Nor is it certainly competent for the defendant to show that the injury was not by reason of the neglect. And let us suppose Webber intentionally drove off the embankment and was killed; there surely could be no recovery in such a case. The injury would not be by reason of the company’s neglect; nor would it be in any case where, if there had been no such neglect by the company, the accident would have happened. The complaint in this case is that the
It is thought by the appellee that there is no evidence tending to show negligence on the part of Webber, but in that view we cannot concur. Without any intimation as to the conclusion to be drawn from the evidence on that subject, it does ■ appear to be in conflict, and to an extent that the jury might have found that without any neglect on the part of the company the accident would have happened. There is evidence tending to show that Webber was intoxicated, and that for some distance before' reaching the place of the accident he was driving outside of the wagon track, and over a surface that would indicate to one of ordinary observation that he was not in the road, and that he so continued to drive to the place of the injury. Webber was alone, and there is no living witness to testify as to how the injury occurred. The court gave to the jury no rule for the application of the fact of Webber’s negligence, if he was' negligent; but, on the contrary, it seems to exclude it, as having no bearing on the case as applicable to a recovery under section 1288.
The court used the term “contributory negligence.” Such negligence, strictly speaking, is negligence that operates with other negligence in producing a result, and it is not our purpose to hold that proof of such negligence would excuse the defendant company from liability, for the language of section 1288 seems to exclude such a rule. As no other instruction was given bearing on the question of negligence, it seems to us that the effect of the court’s instructions is to fix an absolute liability on a railway company in a case
We do not find it necessary to consider other assignments, and the judgment is reversed.