Messenger v. Pate, 42 Iowa 443

Messenger v. Pate

42 Iowa 443 | Iowa | 1876

Rothrock, J.

Sec.4064, of the Code,provides, “that if any person run any threshing machine in this State, without having the two lengths of tumbling rods next the machine, together with the knuckles or joints and jacks of the tumbling rods safely boxed and secured, while the machine is running, he shall be deemed guilty of a misdemeanor, and bepunished, etc.”

*446I. Tlie first .question presented is that as the statute does not in terms give aright of action to a person injured by the neglect of the person operating the machine to comply with the law, is it a sufficient allegation of negligence to aver that the tumbling rod was not boxed and secured, and that the injury resulted'by reason of the want of such protection?

1 NEGLIGENCE: violation of statute We have no doubt that a right of action exists independent of an express statute authorizing it, and we concur in the general proposition that whenever an act is enjoined or prohibited by law, and the violation of the statute is made a misdemeanor, any injury to the person of another caused by such violation is the subject of an action; and that it is sufficient to allege the violation of the law, as the basis of the right to recover, and as constituting the negligence complained of. In cases involving thé violation of city ordinances by running railroad trains at a greater rate of speed than allowed, it is held sufficient to prove that the accident complained of was caused by a violation of the ordinance, and that this is negligence. Correll v. The B. C. R. & M. R., 38 Iowa, 120.

II. The defendant insists that the petition shows that the plaintiff was guilty of contributory negligence. It is sufficient in this class of cases to plead the absence of contributory negligence in general terms. Nels. Grinde v. The M. & St. P. R. Co., infra, and it is not fair to conclude that as plaintiff concedes he saw the condition of the machine, and how it was operated, that he was guilty of contributory negligence, notwithstanding the allegation that he used due care, and that the accident occurred without fault on his part.

“ Ordinary diligence is no fixed and unalterable standard of care. It is always to be determined by the facts of each particular case and is as variable as the cases.” Murphy v. The C. R. I. & P. R., 38 Iowa, 539. The facts are not alleged here as in the case of Dodge v. The B. C. R. & M. R., 34 Iowa, 276, and consequently it cannot be determined on demurrer that there was contributory negligence on the part of plaintiff.

Affirmed.