Anderson v. Chicago, Rock Island & Pacific Railway Co.

Evans, J.

Negligence : smoke-enshrouded condition of crossing': belated train : instinct to protect self. I. The decedent ivas Charles Norberg. He ■ and his companion were instantly killed, at about 6 P. M. on January 25, 1917, by one of defendant’s trains. As found. by the jury, the accident occurred on the crossing at North Marion Avenue, in the city of Washington, Iowa. There were no eyewitnesses to the collision. The bodies of both men Avere found beside the track, a short distance AArest of North Marion Avenue, Avithin a feAV minutes after a west-bound passenger train had passed. Tavo main lines of track ran parallel for some distance westward out of the Washington depot. On the northerly one, the Oskaloosa train moved westward from the depot on time, going about 12 miles an hour. Within a feAV moments thereafter, the Kansas City train started from the depot in the same direction, moving at 25 miles an hour or more. This train avrs some hours behind time. It overtook and passed the Oskaloosa train, at or about the North Marion crossing. North Marion Avenue is a north and south street. A feAV minutes before the accident, Norberg started for his boarding place. His ordinary course avouM take him across the railroad tracks on the crossings of North Marion Avenue. He avus seen approaching North Marion Avenue Avhile Avalking on a line parallel to the railway tracks and north thereof. The circumstances proved, warrant the inference that he approached the railroads from the north, Avalking along the avenue. He had crossed the northern track, ne Avas undoubtedly killed by a collision with the Kansas City train on the parallel track, 8% feet farther south. Both trains Avere running in excess of ordinance speed. For that reason, the question of negligence of the railway company is not disputed on this appeal. The defendant moved, however, at the close of all the evidence, for a directed verdict on the •ground of the contributory negligence of the decedent. The' same point is urged here. The general purport of the argument is that the circumstances appearing in evidence disclose that the decedent could not have come into collision Avith the defendant’s train at such time and place, Avithout contributory negligence on his part. The burden was, of course, upon the plaintiff to prove care upon the part of the decedent. He ivas a, mere pedestrian, and had, therefore, full command of his own action, without any of the distractions of a frightened horse or a stalled automobile. He was familiar with the location and with the train schedules. On the other hand, the immediate circumstances had their confusion. The smoke of the Oskaloosa train covered the track of the Kansas City train. The presence of the Oskaloosa train also blanketed the Kansas City train from the view of Norberg, while he was on the north side of the Oskaloosa train. No train was due on the Kansas City track ■at that time, the train in question being several hours late. Norberg must have crossed the north track in front of the Oskaloosa train. The overtaking and passing of the Oskaloosa train by the Kansas City train at this point ivas an important circumstance. It may be that he did not, and even with diligence could not, have discovered the presence of the Kansas City train until after he crossed the north track. In view of the absence of eyewitnesses, the jury did have the right to consider the instinct of self-preservation, as a fact bearing upon the question of care. Just how much weight should be given to. this fact would be also a jury question, in the light of all the circumstances. We are of the opinion, therefore, that the circumstances appearing in evidence were not conclusive, as a matter of law, upon the question of contributory negligence, and that the plaintiff was entitled to go to the jury thereon.

2' when'ciaims barred: eaminga devoted mentstter’ II. At the time of the accident in question, the railroad of the defendant corporation was being operated by its receiver, Jacob M. Dickinson. The original liability, if any, therefore, was that of the receiver, and not the corporation. It appears, also, that certain orders were made in the re-' ceivership proceedings by the Federal court having jurisdiction of the same. One of these provided that all claims against the receiver should be presented to the receiver on or before July 14,1917, and that all claims not so presented should be thereafter barred. The claim of the plaintiff was not thus presented. It is urged, therefore, by appellant that it has been fully adjudicated against the plaintiff, and that such order of the Federal court is a bar to further prosecution of the case. It further appears that, although the receivership proceeding was pending for some months, during which time the railroad was operated by the receiver, yet the receiver did not, at any time, sell the property of the corporation, nor convert it into cash or liquid assets; nor did he purport to distribute the property in his hands to the payment of creditors. The only distribution made by him was that of the receipts from the operation of .the road. This was the status of the receivership proceedings when the corporation applied to the court for an order directing the receiver to restore to the corporation all its property. The basis of this application was, in substance and effect, a declaration of solvency on the part of the corporation, and an assurance of its ability to finance its assets in such a way as to satisfy or pay all its creditors. Such application ivas sustained by the court, and pursuant thereto, the receiver surrendered to the corporation all the assets in his hands. It will be seen from the foregoing that, although the receiver was in the first instance alone liable for the damages,, if any, claimed herein, yet, as such receiver, he would have been entitled to pay such damages out of the moneys realized by him in the operation of the road. None of the moneys so earned were applied to the payment of such damages. On the contrary, the moneys realized in such operation were, to the extent of more than $1,000,000, applied to betterments of the road. In the restoration of its property, the corporation received the full benefit of these betterments.

3 Receivers * oraer ^íor^fiinoncompii-' flTlOO Upon the state of facts here indicated, the United States Supreme Court has spoken fully. Texas & Pac. R. Co. v. Bloom’s Admr., 164 U. S. 636; and Texas & Pac. R. Co. v. Johnson, 151 U. S. 81. See, also, Gran v. Grand T. W. R. Co., 156 Fed. 736; also annotation following Carlson v. Mid-Continent Dix. Co., L. R. A. 1918 F, 318, 320 to 324.

The .substance of the holding in the cited authorities is that, when the property, without sale thereof, is restored to the corporation, with the betterments made by the receiver, the corporation must be deemed to assume the liability of the receiver, to the extent, at least, of the betterments, caused by the receiver out of the operation of the property. It is held, also, that the order entered by the Federal court,, fixing a date within which this claim must be presented against the receiver, is not, in the absence of the sale of the property and a distribution of the assets to creditors, a bar to the litigation of plaintiff’s claim. It is needless that we should add argument or discussion to these holdings by such court. They are decisive of the question before us.

It is urged by the appellant that a large amount of new stock was issued and sold to new stockholders, who were in the nature of innocent purchasers, and who will be prejudiced by the recognition of this liability. There was no change in the organization or entity of the corporation. The property was restored in its entirety to the same corporation from Avhich it AA-as taken. The realizing of a large amount of money by the sale of neAV stock Avas only a method of finance, and it was a recognition by the purchasers of the solvency of the corporation, and was the assurance to the court that the company Avas solvent, and financially able to manage its property as a, going concern. Without such assurance, the court AArould not have restored the property. In brief, Ave do not think that the sale and purchase of neAV stock of the corporation is a fact Avhich entitles the corporation to claim the status of an innocent purchaser of its OAvn restored property.

III. The trial court gave the folloAving instruction:

4. Negligence : no-eyewitness rule : presumption (?) or inference (?) “And, on the question of the deceased Norberg being-guilty of contributory negligence, as is alleged by defendant, you are instructed that, Avhere there are no eyeAAdtnesses as to the manner and way in ivhich the deceased ivas conducting himself at and immediately prior to the time he received the injuries, the law- presumes that he ivas exercising such care and caution as men of ordinary prudence, judgment,, and discretion would exercise, under like or similar circumstances, and in relation to the same matters, unless the facts and circumstances shown upon the trial negative such presumption; and you should indulge in such presumption in favor of the deceased, unless the facts and circumstances developed on the trial negative such presumption.”

Appellant complains of this instruction on the ground that the necessary effect thereof was to cast upon the defendants the burden of proof on the question of- contributory negligence. The difficulty presented by the instruction is its use of the word “presumption.” Ordinarily, a presumption furnishes a resting place to the party otherwise having the burden of proof, and shifts upon the other party the burden of overcoming such presumption. - We have held that the so-called presumption Avhich obtains in the absence of eyeivitnesses, that a decedent exercised due care, is a mere inference of fact, which is Avholly for the consideration of the jury as an item of evidence; that the Aveight thereof is to be determined wholly by the jury, in the light of all the evidence.

There is room for the argument that the instruction under consideration herein runs counter to our holding in Bell v. Incorporated Town of Clarion, 113 Iowa 126. In the cited case, the inaccuracy of speech involved in the use of the Avord “presumption” for the Airord “inference” is pointed out. It Avas, nevertheless,, recognized therein that the Avord “presumption” is not infrequently used as the equivalent and synonym of the AArord “inference.” It is undoubtedly true that the Avord “presumption” is popularly used in such sense, and that such use thereof presses itself ■with great persistency upon la-wyers and judges. Such use of the word has been very persistent in the instructions of trial judges; and we have ourselves recognized the qualified meaning of the word in such case as is here presented. Lunde v. Cudahy Packing Co., 139 Iowa 688, 695; Gray v. Chicago, R. I. & P. R. Co., 160 Iowa 1; Sanderson v. Chicago, M. & St. P. R. Co., 167 Iowa 90; Merchants Trans, & S. Co. v. Chicago, R. I. & P. R. Co., 170 Iowa 378, 390.

In the last-cited case,, the inference which may be drawn from the instinct of self-preservation, in the absence of eyewitnesses, is characterized as an “inference of fact,” as a “presumption of fact,” and as a “rebuttable presumption.” This does not mean that these terms are all necessarily synonymous, or that they may not be distinguished; but it is a recognition that they all may be used in appropriate connection to denote the same thing. The instruction under consideration herein is quite an exact copy of the instruction approved in, Lunde v. Cudahy Packing Co., 139 Iowa 688, 695. This may be a form of surrender to the persist-ency of the use of terms in a popular sense, as distinguished from a strictly legal one.

' On the whole, we think that the use of the word “presumption” in such qualified meaning is not misleading to the jury, if such use is accompanied with proper qualification pertaining to the burden of proof.

In this case, the jury was charged specifically and repeatedly, in Instructions 6, 10, 13, and 15, that the burden was at all times upon the plaintiff to prove that the decedent did exercise ordinary care.

Whether the Lunde case runs counter to the Bell case involves a construction of the opinion in the Bell case. Our own discussion therein is not free from ambiguity. It is not clear therefrom whether the reversal ordered therein was based upon the use of the word “presumption,” or whether it was based upon the burden imposed, upon the defendant by the instruction to the effect that such “presumption would be overcome by evidence that satisfies the minds of the jury that she was negligent.” In the Lunde case, we put the latter construction upon the opinion in the Bell case. We think such construction is fairly invited by the discussion therein.

Following the Lunde case, we think that the use of the word “presumption” in the qualified sense of an inference of fact was sufficiently guarded in the instructions as a whole so as to properly advise the jury of the sense in which it was used, and to advise it, also, that the burden of proof as to contributory negligence remained upon the plaintiff, and was not shifted to the defendant. The judgment below must, accordingly, be — Affirmed.

Weaver, C. J., Ladd, Gaynor, Preston, and Stevens, JJ., concur.