170 Iowa 697 | Iowa | 1914
The accident in question occurred on April 11, 1910, in the railroad yards of the defendant at Oskaloosa. The defendant’s switching crew consisted of two helpers and a foreman, besides the engineer and fireman. The plaintiff was one of the helpers, and was engaged in the line of his duty at the time of the accident. He was riding on the front footboard of the switching engine and was thrown off, as alleged, by the lurching of the' engine, and was thrown in such a way that the wheels of the engine passed over his legs. The charge of negligence against the operating railway company is based upon the specifications that the track at the place of• the injury was dangerous by reason of “low joints” in the rails, and that the speed of the engine was excessive in view of such condition of the track. The defendants denied all negligence and pleaded contributory negligence and assumption of risk.
There are two defendants, the Iowa Central Railway Company and the Minneapolis & Saint Louis Railroad Company. The first named was the operating railway company at the time of the accident, whose employee the plaintiff was. Before the suit was brought, the other defendant became the purchaser from the Iowa Central Railway Company of its railway and all its assets. As a part of the consideration therefor, it assumed all liabilities of the selling company. It is on this ground that the plaintiff claims to recover from both defendants on his alleged cause of action against the selling company.
The immediate circumstances of the accident were detailed by the plaintiff as a witness, as follows:
“I then got on the front end of the engine standing on the footboard, on the left-hand side — the east side. Mr. Andrews was on the right-hand side, and Mr. Frey was on the right-hand side, next to the.drawbar. We were all on the footboard, on the head end of the engine that morning. I was on the left-hand side and the other two men were on the*703 right-hand side. The footboard is about the width of the rails — a little wider — four or five feet. It does not extend out as far as the pilot beam, and it was about ten inches short, I think. That morning we came up to High Avenue, a distance'of about three blocks, and stopped. The foreman told us to go in on the house track. We stopped at High Avenue to pick up the foreman. Mr. Andrews got on the engine at First Avenue. The engine started south, and had run about 225 to 300 feet when the accident happened. The grade is very nearly level. If there is any grade at all, it is down grade. The engine was running approximately 8 miles an hour. The engine is generally pretty quick to pick up. Mr. Quaekenbush was the engineer and Landfear was the fireman. The engineer is on the right-hand side when the engine is headed south. The fireman is on the left-hand side. I was on the fireman’s side. It was about 6:05 to 6:15 when the engine started. Mr. Andrews started to get off. It was my duty to follow the engine foreman, Mr. Andrews. When Andrews started to get off, I started to get off, too. I did not think the engine was quite as far down as it was with reference to soft spots or low joints. We hit a low place in the track. The engine seemed to lurch forward and down, and my starting to get off it jerked me loose from the grabiron or handhold. Immediately before, my left hand was on the grabiron. That is the ordinary position in getting off. Just before that time, one hand was on the pin lifter and the other was on the grabiron. That is not the ordinary position in riding on an engine. I was listening to a conversation between Mr. Andrews and Mr. Frey. Andrews stepped off on the right-hand side. I started to get off on the left-hand side. I was accustomed to getting on and off an engine moving at that rate of speed. There was not anything in the rate of speed at which the engine was moving that was likely to throw me, and that was an ordinary place to step on or off the engine, moving at that rate of speed. When I started to step off, the engine seemed to dip down on my side, on the*704 left-hand side. The point where the engine seemed to' dip down was at this soft spot — the soft spot where I got injured. That was between 225 and 300 feet south of the First Avenue crossing. That is the same soft spot as I described as being in the vicinity of where water had stood. The rail was ordinarily depressed at that point about 2y2 to 3% inches. The engine seemed to go down. It threw me loose. I was thrown forward, out of the rail. My body was on the outside of the rail. My legs were across the rail. I was in a position at right angles to the rail, my feet a little bit towards the engine. The pony trucks are about 16 or 18 inches from the front of the footboard. When I found myself falling, I tried to throw myself out of the way. The next thing was, it sort of all became blank; when I seen the engine was going to get me, I don’t remember anything until the boys picked me up.”
Other facts and the evidence relating thereto will be set forth later in the discussion of the alleged errors complained of by appellant.
“Third. The grantee hereby assumes the payment of all the current and ordinary charges, costs, liabilities and expenses of the grantor arising out of the operation of the railroad and property of the grantor and remaining unpaid at the date of the execution and delivery of this indenture and agrees to indemnify and save harmless the grantor from and against any and all such charges, costs, liabilities and expenses.
*705 “Eighth. Nothing in this indenture expressed or implied is intended or shall be construed to confer upon or give to any person or corporation other than the parties hereto their successors and assigns any right remedy or claim under or by reason of this indenture or under or by reason of any covenant condition or stipulation herein contained, all the covenants, conditions and stipulations contained in this indenture being for the sole and exclusive benefit of the parties hereto, their-successors and assigns.”
The third clause is that upon which the plaintiff relies in asserting his claim against the Minneapolis Company. • The eighth clause, above quoted, is that upon which the Minneapolis Company bases its denial of liability to the plaintiff. It is quite clear that the third clause, in the absence of the eighth, is sufficient to render the purchasing company liable to plaintiff for whatever amount was justly due him from the selling company. The defendant does not contend otherwise. Its contention is that the eighth clause completely negatives such liability to the plaintiff and confines the liability of the Minneapolis Company to the Iowa Central Company alone. That the terms of the eighth clause will bear such construction must be conceded. If such construction be given to it, its practical effect is to contradict and nullify completely the third clause. The Iowa Central Company turned over to the Minneapolis Company all its assets - of every kind. It has nothing left but its name and its legal entity.
Ignoring the eighth clause, the contract, on its face, was just and free from fraud as to creditors of the selling company. If such eighth clause is to be construed as depriving such creditors of all right to avail themselves of the other provisions of the contract, then it was manfestly fraudulent on its face as to such creditors. In view of the conflicting provisions of these two clauses, one must necessarily give way to the other. The assumption of the liabilities of the selling company by the purchasing company was of the very essence
The precise question here presented was involved in Hipwell v. National Surety Company, 130 Iowa 656. It was there held that a condition similar to clause eight herein could not be enforced, because the same was in conflict with the covenants of the contract. That case is quite decisive of the point here presented. The cited case quite answers, also, the argument of appellant herein that the contract before us was one of mere indemnity for the selling company, and not of payment to its creditors. The contract in the Hipwell case was one of indemnity by an indemnity insurance company. The only consideration received by the insuring company was a comparatively small premium. The Minneapolis Bailroad Company, appellant herein, is not an indemnity insurance company. Its undertaking was not entered into for a premium. Doubtless it is not empowered to undertake indemnity for a premium. Its contract herein is one of indemnity only in the sense that when one party, for a consideration, assumes to pay the debt of another, he does agree to indemnify and hold harmless to that extent. Such a contract is not one of mere indemnity, whereby the indemnifying insurer contemplates in his own favor the contingency that no loss or liability may arise, and in consideration of such contingency, accepts from the insured a small premium as a consideration for carrying the risk of a larger loss.
The contract before us dealt with accrued and existing liabilities. The purchasing company agreed to assume the same, not upon a contingency of their future arising, and not for a premium percentage, but for a consideration received in advance, presumably equal to the obligation assumed. If the contract should be construed as one of mere indemnity, and nothing more, as contended by the Minneapolis Company,
We are clear, therefore, that, so far as clause eight contradicts the covenants of clause three, it must be ignored. Ignoring such clause, the authorities are abundant that a privity of contract arose between the purchasing company and the creditors of the selling company, whereby the creditors became entitled to enforce their claims by action against the purchasing company. Knott v. Ry. Co., 84 Iowa 462; Malanaphy v. Mfg. Co., 125 Iowa 719; Weiser v. Ross, 150 Iowa 353; Beeson v. Green, 103 Iowa 406; Calumet Paper Co. v. Stotts Inv. Co., 96 Iowa 147; Hanlon v. Smith, 175 Fed. 192; Dancel v. Goodyear Shoe Machinery Co., 144 Fed. 679, 680; Billmyer Lumber Co. v. Merchants’ Coal Co., 66 S. E. 1073, 1077; Thompson on Corporations, Secs. 6082, 6083, 6089, 6096.
In the first instance, this line of evidence was introduced without objection. Later, objection was interposed to further testimony of the kind, because not confined to the place of the injury. Such objection was overruled, and complaint is now based on such ruling. Such evidence was offered and received on the theory that it tended to prove notice to the company. In its final argument before us, the appellant takes the ground that there was no burden of proving notice upon the plaintiff, and that such evidence was, therefore, irrelevant and incompetent. In putting forth this proposition, the appellant has quite changed front. The case was tried in the court below on the theory, apparently acquiesced in by both parties, that it was incumbent upon the plaintiff to prove notice of the defect complained of. The trial court so instructed the jury.
In appellants’ opening argument filed in this court, they specifically challenged the sufficiency of plaintiff’s proof of such notice. We quote the following from such argument:
“What proof is there that there was a defective track at the place of the injury?” “What proof is there that defendant had any notice of that defect ? ’ ’
If proof of notice was necessary, then the line of evidence objected to was properly received for that purpose. If it was not legally necessary, the defendants were not prejudiced by the undue burden laid upon the plaintiff. If the defend
Q. “Basing your answer upon your knowledge, observation and experience, what would you say to the j’ury as to whether an engine of that type, that you were riding on that morning, would lurch without striking a depression in the track, going at the rate of speed that it was proceeding, substantially eight miles an hour?'” (Obj'eeted to as immaterial, incompetent and' irrelevant, asking for the conclusion, and opinion of the witness, incompetent under the issues in this*710 ease, not a jjroper subject for expert testimony. Objection overruled. Defendant excepts.) A. “No, sir, it would not. . . .” Q. “Mr. Woodworth, what do you say to the jury as to whether or not you would have been thrown down, or fallen down in front of the engine, at the time of the accident, if the engine had not lurched, as you have described here in your testimony?” (Objected to as incompetent, immaterial and irrelevant, calling for the conclusion and opinion of the witness and not for any fact, not a proper subject of expert testimony; no proper foundation laid for the introduction of the testimony, and seeking to invade the province of the jury, and places the witness in the place of the jury. Objection overruled. Defendant excepts.) A. “No, sir, I would not.”
Technically, we think the objection to each question ought to have been sustained. The plaintiff had testified that there was a depression at the place of accident, and that the engine did lurch as the wheels passed over it. There was nothing left for expert opinion. As .to the second question, the plaintiff had already testified, in substance, that the lurching of the engine threw him. His testimony as to the circumstances excluded every other cause. There was nothing left for expert opinion there. On the other hand, such questions and the answers thereto could not have worked any possible prejudice to the defendant. It may be justly urged for appellants that such testimony was argumentative, but in this regard it was within the latitude of the discretion of the trial court. The inference drawn thereby was ordinary and nonexpert, and doubtless ought to have been left to the jury; but it was the only inference which the jury could draw, if it accepted the previous testimony of the plaintiff as to the facts. There was nothing in such opinion as given by the plaintiff that was fairly calculated to corroborate him or to aid his credibility, and nothing therein that could prejudice the defendants in the mind of the jury. The matter thus introduced was, therefore, plainly inconsequential and nonprejudieial.
The defendants introduced in evidence certain formal admissions made by the plaintiff and reduced to writing on three different dates. It is claimed that his present testimony is seriously contradicted by each and all of such written admissions. The first of these was a written statement by the attending physician, purporting to have been made upon information received from the plaintiff in response to inquiry. The particular feature of this statement, which is emphasized, was that plaintiff remembered nothing about the circumstances of the accident, and did not remember that he had gotten upon the footboard of the engine, and did not remember that he had come up to the engine, his last memory being that he was going toward the engine. Five days later, a second written statement was signed by the plaintiff, the particular feature of which was that, though he remembered going up to the engine and throwing his coat thereon, he did not remember that he got upon the footboard. A few weeks later, a third written statement was signed by him, the particular feature of which was that he remembered coming back to the engine and of getting on the footboard, on the east side, and that he remembered.nothing more. This statement also contained the following sentence, upon which stress is laid: “I do hot know what caused me to fall, unless it was my fainting away. ’ ’ The contention of appellants is that these statements are so contradictory and inconsistent with the plaintiff’s testimony upon the trial that, they should be deemed to nullify it entirely. Before considering this contention, a few things should be noted in a preliminary way. None of the
The accident occurred in the forenoon. The wheels took off the plaintiff’s legs; it still remained for him to undergo a surgical operation under anaesthetics, later in the day, whereby a further amputation was made by the surgeon upon each stump. At the close of this day of ordeal, he was unable to remember anything about the circumstances of the accident, and.unable to remember that he had even reached the engine. We find it quite impossible to doubt the candor of this statement, or to deem it incredible that plaintiff’s memory could fail him at this time, and yet be restored to him later.
The second statement was signed five days later. The ■plaintiff testified that he remembered nothing about reading or signing such statement, and did not know of it until it was presented to him upon the witness stand. He admitted, however, the genuineness of his signature thereto. This statement reiterated his want of recollection of the circumstances of the accident. It advanced, one step, however, from the first statement. This is the statement which declared that he remembered his going up to the engine and throwing his coat thereon, but did not remember his getting upon the footboard.
The third statement declared that he remembered his getting upon the footboard, but remembered nothing more. • Between the time of the second statement and the third, plaintiff had undergone two surgical operations. There had been pus formation, and one limb, at least, had been honeycombed with, drainage tubes. These tubes totaled a length of more than 100 inches. Needless to say, he had been a constant sufferer during the period covered by the statement. Accepting the declarations of all such statements as true at the time, they do no more than to indicate that the memory of the plaintiff as to the immediate circumstances of the accident was obliterated by some cause, either- temporarily or perma
It was the contention of appellants, however, that the accident to the plaintiff was the result of a fainting spell. Evidence was introduced by the defendant along that line. It is the contention now that the sentence which we have above quoted from the third statement was an admission by plaintiff that his falling was caused by a fainting spell. We see no necessary inconsistency in such statement. It only purported to be a concession of a possibility. The defendant was entitled to its contention before the jury. Such question was submitted to the jury by a specific instruction, to which no objection is urged. The trial court expressly instructed that if the plaintiff fell as the result of a fainting spell, then a verdict must be returned for the defendant. We are clear that the case at this point presents only a conflict of evidence, and that the verdict has abundant support.
So far as the answer was concerned, it pleaded the defense of assumption of risk in one division only. It charged the plaintiff with knowledge of the condition of the yards and track, and averred that the plaintiff assumed the risk incident to his employment “in the said yards” and the “dangers and hazards incident to riding over the tracks in their then condition. ’ ’ It also charged that, if the defendant was negligent, the plaintiff was aware of the danger arising because of such negligence and assumed the risk of the same.
“That in all cases where the property ... of an employer are defective or out of repair, and where it is the duty of the employer from the character of the place, . . . to furnish reasonably safe . . . place to work, the employe shall not be deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employe may have had knowledge when the employer had knowledge of such defect. . . .. Nor shall the employe under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work; but this statute shall not be construed so as to include such risks as are incident to the employment
The last clause of the foregoing is relied upon by appellants as requiring the court to submit to the jury as an affirmative defense the assumption' of risk incident to the employment. Such clause does not purport to add anything to what precedes it. It is precautionary only, and declares a construction or meaning to that which precedes it. The construction thus declared is the natural construction of the preceding lan
' Appellánt’s counsel did submit to the trial court certain requested instructions on the subject of assumption of risk, but these ignored the statute entirely and were inconsistent therewith.
It will be noted that some limitation is put upon the terms thus used by the clauses, “as shown by the evidence” and “if any he will suffer in the future,” and “all as established by the evidence admitted.” Whether these limitations are sufficient to differentiate the instruction from the cases above cited is a close question.
In Bailey v. Centerville, 108 Iowa 20, 28, it was held suffi-
In some of the cited cases the objectionable expression was coupled with the limitation ‘ ‘ as shown by the evidence. ’ ’ This was held insufficient.
We are not disposed to go any further than our previous cases in the finding of error at this point, because of the technical character of the error. We incline to the view that we would be going somewhat farther than heretofore if we were to hold that the limitations above quoted were insufficient to save the instruction from condemnation.
In the case before us, the question of the permanency of the injury is not open to difference of opinion or speculation or conflicting evidence of any kind. So conclusive was the fact that no distinctive evidence was offered upon it by either party. The plaintiff’s injury was the loss of both his legs. Being necessarily permanent, nothing could be added to it, even by speculation of the jury. The impairment and inconvenience and anguish are inseparable from such permanency. We think, therefore, that in a ease of indisputable permanent
In the case before us, there was no request for a more specific instruction. What we said, therefore, in the Breen Case above quoted is quite conclusive here.
We see no legitimate ground for our interference with it. The judgment below must be — Affirmed.
