71 Iowa 561 | Iowa | 1887
It is alleged in the petition that the injury was .caused by the negligence of the defendant, and that its negligence consisted (1) in the manner in which its track and
In rebuttal, plaintiff introduced evidence tending to prove that the bridge' was not sufficient, either in plan or construction; that the guard-rails were not of sufficient size, and were not properly placed or fastened; that the joint fastenings at' the point at which the derailment occurred were insufficient, and were broken prior to the occurrence of the derailment; and that the break might have been discovered, by a careful and proper inspection, before the passage of the train.
The errors assigned all x’elate to the instructions given by the court to the jury.
The point urged by counsel for appellant is that the instructions are erroneous, in that they limit the burden imposed upon defendant by the evidence of the occurrence of the accident, and the attendant circumstances, to proof merely that it had not been negligent in respect to those matters which the circumstances indicated were the cause of the injury. Their position is that the presumption which arises upon proof of the happening of the accident is not a mere presumption of negligence as to some specific matter, but is a presumption of general negligence on the part of the carrier; or, in other words, they insist that the presumption is that he is legally liable for the injury, and that this presumption can be overcome only by proof that it was caused by inevitable accident, and that it follows necessarily from this that he must account for the accident, and show that he was free from all negligence in the matter.
The rule which casts the burden of proof on the carrier is a rule of evidence having its foundation in considerations of policy. It prescribes the quantum of proof which the passenger is required to-produce in making out his case originally, and he is entitled to recover on that proof,, unless the carrier
The rule undoubtedly requires the carrier to prove his own freedom from negligence as to the cause of the injury. But that, it appears to us, is the doctrine of the instructions. The immediate cause of the injury to plaintiff’s intestate was the breaking down of the bridge, and. the consequent precipitation of the car into the ravine, and this was occasioned by the blow or concussion by the derailed train. In seeking-foi the cause of the injury, then, it became necessary to inquire as to the cause of the derailment of the train, and wliethez there was any defect in the track or roadway or bridge, or in the cars or machinery of the train, or any negligence in the management of it at the time; for the circumstances indicated unmistakably that the cause of the accident was to be found in some of these matters. They constituted the subject of the inquiry as to this branch of the case, and defendant very properly confined its proof, as to the diligence and care it had exercised, to that subject.
As there was nothing to indicate that any other matter could have contributed to the accident, it eould not be required to show that it had been careful as to other matters. Such evidence would clearly have been immaterial, and the holding of the instructions is that it was not required to go beyond the cause of the inquiry in making proof of care and diligence. The holding that it was not required to give a satisfactory explanation of the cause of the breaking of the í-ail and bridge is supported by Tuttle v. Chicago, R. I. & P. R’y Co., 48 Iowa, 236.
The rule which has been uuiformly recognized and enforced in this state is that the carrier, in the conduct and manage-of his business, and as to all the appliances made use of in the business, is bound to erercise the highest degree of care and diligence for the convenience and safety of his passengers, and he is held liable for the slightest neglect. Frink v. Coe 4 G. Green, 555 ; Sales v. Western Stage Co., 4 Iowa, 547 ; Bonce v. Dubuque St. R'y Co., 53 Id., 278 ; Kellow v. Gentral Iowa R'y Co., 68 Id., 470. It is insisted that the instructions are in conflict with this rule. The position of counsel is that, by the use of the words reasonable, reasonably practicable, and reasonably practical in the instructions,
■ It sometimes happens that a derailed train is precipitated from a high embankment, and the lives of its passengers endangered or destroyed. Accidents of that character could be avoided by constructing all railroad embankments of such a width that a derailed train or car would come to a stop before reaching the declivity. But this would add immensely to the cost of constructing such improvements, and, if required, would in many cases prevent their construction entirely. If passenger trains wore run at the rate of ten miles per hour, instead of from twenty-five to forty miles, it is probable that all danger of derailment would be avoided. - But railroad companies could not reasonably be required to adopt that rate of speed. Their roads are constructed -with a view to rapid transit, and tire traveling public would not tolerate the running of trains at that low speed. When it is said that they are held to the highest degree of care and diligence- for the safety of their passengers, it is not meant that they are required to use every possible precaution, for 'that, in many instances, would defeat ‘the very .objects of their employment. There are- certain dangers
“ The degree of care required of defendant in the section of its materials, the plan and construction' of its roadway, track, bridges and rolling stock, in the selection of its employes, servants and agents, and in the inspection and repairs of its road, and the machinery and appliances connected with the operation of the same, is such as the best, most carefully, prudently and skillfully managed railroads of the country exercise and require, .doing a like business, and under like circumstances.
“The high degree of care hereinbefore referred to, and required of defendant, embraces its roadway, track, bridges and rolling stock, and the selection of its employes, servants and agents. In supplying materials for and in constructing its roadway, track, bridges and rolling stock, it was required to exercise that high degree of care to see that materials used were amply sufficient, and of such quality, size, pattern, as were accepted by and in general use, and found to be sufficient, and approved by the best and most skillfully managed railroads of the country, doing a like business with defendant. In the selection of train-men, and in the management of its train, it was bound to exercise that high degree of care, and to provide men of sufficient experience, skill and prudence to run such train safely, as far as was practicable; and it was bound, also, in like manner, to see that, in the actual*570 management of the train at the time of the accident, the train-men exercised a like degree of care and skill in managing and running the train safely in all respects, so as to avoid injury to the passengers. If defendant failed in any of these respects, and such failure was the cause of the injury complained of, it was negligent, and is liable.
“ If you find that the rails which were broken were made by a manufacturer of good repute, were made upon the approved method of manufacturing rails, were properly tested by the proper known and usually applied tests then in praccical use, and had been on the track for several years, and had successfully stood the strain of numerous passing trains without in any manner affecting their quality or strength, so far as could be seen by proper examination, carefully and skilfully made; if, at the time of the accideut, they were placed and lying securely on sound ties, with good angle-bars or splices at the ends, with sufficient ballast under the ties, with all their connections and supports well adjusted; if they had been subjected to a daily inspection in the most approved and customary way of inspecting such appliances by the most careful and best mauaged railroads in the country, by some servant of competent skill and experience in such matters, and said rails appeared then sound, and all these connections and supports sound and secure; and if there were no flaws or defects visible, or that could have been discovered by such approved and customary inspection, made in the manner hereinbefore explained, — then the defendant was not negligent with reference to said rails.”
Some of the members of the court think that the eleventh instruction is erroneous, but we unite in the conclusion that, if it should be conceded to be erroneous, the plaintiff could not have been prejudiced by it. The doctrine of the instruction is that the degree of care required of defendant in the selection of plans and materials for its roadway, bridges and appliances was such as was exercised by the best and most skillfully and carefully managed railroads in the country, under
We have found no ground in the record upon which we think we ought to disturb the judgment, and it well be
Affirmed.