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Liability of Subscribers to Stock.

failure of consideration. Ibid.

69. Fraud. Fraud in procuring such subscriptions must be affirmatively shown and will not be presumed. Ibid.

road company nor its assignee could recover machine shops, engine, car-houses, and side upon said note without showing a substantial tracks, are to be furnished free of any expense compliance with the terms of such condition. to the company," it was held, no time being Thompson v. Oliver, 18 Iowa, 417. fixed in the written agreement within which 66. Subscriptions in the hands of trustees: such erections were to be made, that the failure rights of company. Defendants, as a committee on the part of the company, up to that time, to acting in behalf of the citizens of P., entered | make the same would not support the plea of into an undertaking to furnish the right of way, depot grounds and cattle yards, and "to obtain subscriptions for the Des Moines Valley Railroad Company, in accordance with the blank notes furnished by the company for that purpose, to an amount of at least $10,000, provided said company run its track through P." Defendants, in accordance with this undertaking, obtained a large amount of subscriptions in the form of notes conditioned to be paid so soon as trains were running from K. to P., and containing a proviso that they were to be void if the trains were not thus running on or before a certain date. The road was not completed to P. until about two and a half months after this date. In an equitable proceeding by the company to require defendants, upon their refusal, to make known the name of each subscriber, the amount of each subscription, and to deliver the notes thus held by them over to the company, it was held, on demurrer to the petition containing these averments, that the facts alleged entitled plaintiffs to the relief asked; that the de

70. Special conditions. To entitle a rail. way company to recover under a special subscription to aid in the construction of its road through a certain county, payable in installments as the work progresses, it is not necessary that the whole amount of capital stock, as fixed by the articles of incorporation, should have been subscribed. The lowa & Minnesota R. R. Co. v. Perkins, 28 lowa, 281.

71. Liability governed by terms of subscription. In such case the liability of the subscribers is governed by the terms of the subscription, and not by the articles of incorporation, and their subscriptions become due upon the survey, location and progress of the road, payable in installments as provided by the terms of subscription. Ibid.

72. Rule exemplified.

It was accordingly

fendants were mere trustees in holding the sub-held, in the present case, that a failure on the scription notes, and not entitled to interpose the part of the plaintiff to show that assessments were made upon the stock by the board of defense which properly belonged to the subscribers or makers of the notes, and which they of notice of such assessments as provided by directors of the company, and the publication might not desire to avail themselves of, that the the articles of incorporation, would not prenotes were void because the road was not comvent a recovery. lbid. pleted to P. at the date stipulated. Des Moines Valley R. R. Co. v. Graff et al., 27 Iowa, 99. 67. Want of consideration.

The

agree

ment on the part of a railroad company, contained in a written proposition, upon which subscriptions are procured, to the effect that it will construct a railroad to a certain point, is sufficient, as an original consideration to subscription obtained thereon, though the company afterward failed to perform the agreement. First National Bank of Cedar Rapids v. Hurjord & Brother, 29 Iowa, 579.

73. The same rule was held respecting the fact that the assessments, under which payments were sought of the defendant, were not made upon all the stock subscribed, but were confined to the stock of the subscribers of the county, to aid the construction of the road, through which the subscriptions were made.

Ibid.

74. Recovery on. In an action to recover the whole amount of a railroad subscription, payable in installments, the company may recover an installment payable without any proviso or conditions, though it should fail in proving its right to the other installments. St. Louis & Cedar Rapids R. R. Co. v. Eakins,

68. Erection of depots and machine shops: failure of consideration. Where such written proposition, upon which the subscriptions were based, stipulated that "eighty acres of land, suitable for passenger and freight depots, 30 Iowa, 279.

Corporate Liabilities - For Injuries to Employees.

V. CORPORATE LIABILITIES.

a. For injuries to employees.*

75. Employees. In connection with railroads the term " employees" applies to conductors, agents, superintendents, and others engaged in operating the road and the like and not the contractors, and persons engaged in constructing the road-bed, and in laying down the ties and rails. Ney v. The Dubuque & Sioux City R. R. Co., 20 Iowa, 347.

76. If the employee was negligent he cannot recover. An employee cannot recover from a railroad company for injuries sustained by reason of the negligence of a co-employee, if he was also negligent and careless. Hoben v. The Burlington & Missouri R. R. Co., 20 Iowa, 562.

77. Negligence of "boss." Where several employees of a railroad company are traveling upon a hand-car under the charge of a conductor or boss" employed as such by the company, such employees are not chargeable with any negligence of such "boss" in the management of the car. Ibid.

78. Degree of liability. A railroad company and an employee occupy the relation of master and servant, and, independent of the statute, the company would not be liable for any injury sustained by one employee through the negligence of another. Hunt v. The Chicago & Northwestern R. R. Co., 26 Iowa, 363.

79. While section 7, chapter 169 of the Laws of 1862, gives to an employee the right to recover of a railroad company for injuries occasioned by the negligence of a co-employee, the liability of the company is nevertheless measured by a different standard and rule as to negligence from what it is in case of injuries to passengers. Ibid.

80. Damages: evidence of plaintiff's condition. In an action against a railroad company by an employee for injuries resulting from the alleged negligence of the company for a co-employee the plaintiff was allowed to prove, that he had no means to subsist upon, and that he

was entirely dependent upon his labor for support. This evidence is admissible as tending to show the nature of his business and the value of his services. Ibid.

81.

ability of defendant to pay. The the ability of the defendant to pay, for the purjury, however, cannot take into consideration pose of increasing the damages, in the absence of bad motive or any fact to entitle the plaintiff to exemplary damages. Hunt v. The Chicago & Northwestern R. R. Co., 26 Iowa, 363. 82. Whether this could be done in a case where plaintiff was entitled to exemplary damages, quere. Ibid.

83. Duty in providing proper appliances. It is the duty of railroad companies to provide their cars with such appliances as are calculated and reasonably necessary to insure the safety of their employees. Greenleaf v. Illinois Central Railroad Co., 29 Iowa, 14.

84. Instruction construed in reference thereto. In an action against a railroad company to recover for the accidental death of an employee, it was contended by the plaintiff, on the trial, that the deceased fell under the train by reason of a want of proper appliances on the end of the car he was descending to uncouple the train. The court charged the jury, in one of its instructions, that “it was the defendant's duty to provide cars with such appliances as are best calculated to insure the safety of employees; and if a ladder on the end of the car, or a handle, as described by the witnesses, would be a better protection to life than the car which ant's duty to furnish a car with such appliproduced the accident, then it would be defend

ances." Held, 1. That a fair construction of the

language used in the instruction, under the cir

cumstances of the case, did not warrant the position that by it the defendant was held to use the highest skill in procuring the very best appliances, but rather those appliances which were reasonably best calculated to insure safety, as compared with those furnished. 2. That the expression, "the car that produced the acci. dent," did not assume as a fact that the car produced the injury, and that the jury could only

*The common-law rule that the master is not liable for an injury to a servant occasioned by the negligence of a co-servant has been changed in this State by the following section of chap. 169, Laws of 1862, to wit: Every railroad company shall be liable for all dam-reasonably have believed that it was used as ages sustained by any person, including employees designating the car which plaintiff claimed was of the company, in consequence of any neglect of the agents or by any mismanagement of the engidefective. Ibid. neers or other employees of the corporation to any person sustaining such damage. Hoben v. The Burlington & Missouri R. R. Co., 20 Iowa, 562; Greenleaf v. u. Cent. R. R. Co., 29 Ibid. 14, and others are predIcated thereon.

85. Knowledge of defect by company. If the car in question was wanting in the appliances reasonably necessary for the safety of

For Injuries to Employees - For Injuries to Persons Generally.

employees at the time of its construction, and so continued when put and used upon the road, it would not be necessary to show any further knowledge thereof on defendant's part in order to fix its liability. Ibid.

86. If, however, it at one time had these appliances, and they were afterward removed by accident or otherwise, then before an employee could recover on account of such defect, it would have to be shown that the company or its agents had notice thereof, or might have known it by the use of ordinary care. Ibid.

87. Knowledge of defect by employee. If the danger or defect was known to the employee, and there was no inducement used for him to remain, by promises to remove the danger by remedying the defect, it would seem that he thereby assumes the risk, and would not be entitled to recover for injuries resulting therefrom. Ibid.

88. Where employee acts under instructions. Though the employee previously knew of the defect in the appliances of the car, his right to recover for injuries resulting therefrom would not thereby be defeated, if he was acting at the time under the immediate orders of a superior. The circumstances which the jury may take into consideration in passing upon the question as to whether the employee used due care, stated. Ibid.

89. Negligence: onus probandi. The burden of proof is upon the employee to show both the negligence of the company and his own care. But he is not bound to do more than raise a reasonable presumption of negligence on the part of the company. Ibid.

90. When a question of law for the court. While the question as to whether a party has been guilty of negligence, which is one of mixed law and fact, may be decided as a question of law by the court, where the facts are undisputed or conclusively proved, this rule does not apply when the facts are disputed, and the evidence is conflicting. Greenleaf v. Illinois Central Railroad Co., 29 Iowa, 14; S. C., 33 Ibid.

52.

against the company. Dewey v. The Chicago & N. W. R. R. Co., 31 Iowa, 373.

92. Negligence of employee. That the deceased was the conductor and superior officer of the train, and directed the line of conduct which resulted in his death, would estop his administrator from recovering against the company on the ground of negligence on the part of its employees. Ibid.

93. Where an employee of a railroad company is injured in consequence of the negligence of a co-employee, the company will be regarded as "the perpetrator" of the act within the meaning of section 4111 of the Revision. Philo v. The Illinois Central R. R. Co., 33 Iowa, 47.

94. Plaintiff's decedent being in the employ of a railroad company, but not engaged in operating the train in question, and on which he was riding, voluntarily got upon the tender of the engine to ride. While he was in this position the engine broke through a defective culvert or bridge, and he was killed. A “caboose " car was attached to the train for passengers and those not engaged in operating the train, to ride in, and it appeared that if the deceased had been in there he would not have been injured. Held, that he was guilty of contributory negligence, and that plaintiff could not recover. Dogget, adm'r, v. The Illinois Central R. R. Co., 34 Iowa, 284.

95. Right of action accrues to representative. Where an employee of a railroad company is killed through the negligence of a coemployee, a right of action, as provided by section 7, chapter 169, acts Ninth General Assembly, accrues to the representatives of the deceased. Philo v. The Illinois Central R. R. Co., 33 Iowa, 47.

b. For injuries to persons generally. (1) Questions respecting negligence. 96. Negligence of company. In an action against a railroad company for wrongfully kill ing the plaintiff's intestate, by running cars over him, while crossing their track, it is incumbent on the plaintiff to show by direct testimony, or That by presumptions arising from facts and circumstances, that the deceased was, at the time, rightfully and not negligently or improperly upon such track. Donaldson v. Mississippi & Missouri R. R. Co., 18 Iowa, 280.

91. Repair of fences: negligence. bars were down, or boards were off a fence along a railroad, through which horses probably came upon the track, where they were run into by the cars, throwing the train off, and killing the plaintiff's decedent, would not of itself constitute any ground for the plaintiff's recovery

97. To render a railroad company liable for the wrongful acts of its agents, it should

Questions Respecting Negligence.

appear that the injury was the natural result of the act of such agents. Haley, adm'r, v. Chicago & N. W. R. R. Co., 22 Iowa, 15.

98. Negligence of plaintiff: contributory negligence. The plaintiff cannot recover for an injury resulting from the negligence of defendant, if want of care or prudence in the party injured in any way contributed directly to the injury. Ibid.

99. In the trial of the cause, the attention of the jury should have been called to the distance between the place where the deceased was left and that where he was killed; the time which elapsed between his removal from the cars and his death, as presenting a material question for their determination; whether or not his faculties had so far recovered, with the power of locomotion, as to enable him to understand the danger of being upon the track while the trains of cars were passing. lbid.

lowing instruction was erroneous, to defendant's prejudice, in failing to state the law fully; "It is incumbent upon the plaintiff to use all reasonable care and prudence in crossing the track, and particularly at stations where there is a probability of there being trains; and the want of such care and prudence on the part of plaintiff, if it tended to cause the injury, will be taken into consideration by the jury in determining the liability of the company." Ibid.

The

103. Giving of signals at crossings. giving of signals of an approaching train at a crossing, by both blowing the whistle and ringing the bell, is not required under the statute nor by any rule of law. Ibid.

104. The giving of signals of each train approaching a crossing, by ringing the bell or blowing the whistle, is not required by our laws. Artz v. The Chciago, R. 1. & P. R. R. Co., 34 Iowa, 153.

105. But where such signals are required by statute, the omission to give them will not render the company absolutely liable, unless injury results from such omission alone, without the negligence of the party injured. Ibid.

106. Nor, on the other hand, will the absence of such statutory requirement excuse the company from giving such signals under all circumstances. Ibid.

100. The doctrine of comparative negligence does not prevail here, but that of contributory negligence; and under this latter doctrine a plaintiff cannot recover of a railroad company for an injury to which his own negligence has contributed, notwithstanding the negligence of the company. O'Keefe, admx., v. The Chicago, Rock Island & Pucific R. R. Co., 32 Iowa, 467; Baird v. Morford, 29 Ibid. 531; Rusch v. The City of Davenport, 6 Ibid. 443; Hunt v. The 107. Omission to have sign-board at crossing. Chicago & N. W. R. R. Co., 26 Ibid. 363; Don- The omission of a railroad company to have a aldson v. The M. & M. R. R. Co., 18 Ibid. 280; sign-board at a higway crossing to warn perHoben v. The B. & M. R. R. Co., 20 Ibid. 562; sons approaching, as provided by section 1331 of Sherman v. The Western Stage Co., 24 Ibid. 515; the Revision, does not render the company absoHaley v. The Chicago & N. W. R. R. Co., 21 lutely liable for injuries to persons or property Ibid. 15; McAunich v. The M. & M. R. R. Co., 20 while attempting to cross the track at such Ibid. 338; Spencer v. The Ill. C. R. R. Co., 29 point. Evidence of such omission merely estabIbid. 55; Kesee v. The Chicago & N. W. R. R. lishes the negligence of the company, and, if it Co., 30 Ibid. 78; Dewey v. The Chicago & N. W. appear that the plaintiff's negligence contribR. R. Co., 31 Ibid. 373; Artz v. The Chicago, Ruted to the injury, he cannot recover. Dodge 1. & P. R. R. Co., 34 Ibid. 153; Dodge v. The B. v. The Burlington, C. R. & M. R. R. Co., 34 Iowa, C. R. & M. R. R. Co., 34 Ibid. 276; Doggett v. 276. The Ill. C. R. R. Co., 34 Ibid. 284.

101. A party cannot recover of a railroad company for injuries done him, when his own want of care and prudence contributed to the injury, or was in whole or in part the proximate cause thereof. Spencer v. The Ill. Cent. R. R. Co., 29 Iowa, 55.

108. Precaution in crossing track. While it is the duty of a person in crossing the track to use all reasonable precaution to ascertain whether a train is approaching, he is not, as a matter of law, bound to stop his team and look and listen before attempting to cross. He may have satisfactory and sufficient evidence to justify him in attempting to cross, without this. Spencer v. The Illinois Central Railroad Com

102. It was accordingly held, in an action against a railroad company for injuries received while attempting to cross its track, that the fol-pany, 29 Iowa, 55

Regarding the Rights and Duties of Passengers.

All

114. What rules deemed reasonable. regulations of a railroad company will be deemed reasonable which are suitable to enable the company to perform the duties it undertakes, and to secure its own just rights in such em

proper to insure the safety, and promote the comfort of passengers. Ibid.

109. Contributory negligence: when a ques- and govern its agents in the discharge of their tion of law. Where a person knowingly about duties, and for the conduct of passengers while to cross a railroad track approaches it from a on its trains. Ibid. point where he may have an unobstructed view of the railroad, and know of the approach of a train a sufficient time to clearly avoid any injury from it, he cannot, as a matter of law, recover, although the railroad company may also have been negligent in omitting to perform a statu-ployment; and also such as are necessary and tory requirement, or otherwise. Artz v. The Chicago, R. 1. & P. R. R. Co., 34 Iowa, 153. 110. when of fact. But if the view of the railroad, as the crossing is approached, is, by any means, so obstructed at the time as to ren-road company may charge one rate of fare to der it impossible or difficult to learn of the approach of the train; or there were circumstances connected with the accident calculated to deceive or throw a person off his guard, then whether it was negligence on the part of the person injured in undertaking to cross is a question of fact for the jury. Ibid.

(2) Regarding the rights and duties of passengers. 111. Regulations affecting passengers. It seems that a railroad company has the right to make a resolution requiring all passengers to purchase tickets before taking passage in a caboose car, attached to a freight train, and to enforce this rule upon any person failing to comply with it, by ejecting him from the car in a proper place and manner. But if this should be so improperly done as to endanger life or person, as while the cars were in motion, the company would be liable. Law v. Illinois Central Railroad Company, 32 Iowa, 534.

112. So long as a passenger upon a railroad shall comply with the reasonable regulations of the company, he has a right to remain in the cars, and to be carried over the road; and if, while thus complying with the regulations, the conductor, officers, agents or servants of the company shall eject him from the cars, they will be liable, in a criminal prosecution, and the company liable in damages for all injuries sustained, as the result of the action of its agents and servants. State of Iowa v. Chovin, 7 Iowa, 204.

113. Right of company to adopt reasonable rules. For the proper management of its officers, the better to secure the safety and security of passengers, and to facilitate the business and labors of its agents, a railroad company has power to make reasonable regulations to guide

115. May charge different rates of fate as penalty for non-purchase of ticket. A rail

those passengers who purchase tickets before taking their seats in the cars, and exact an additional sum of those who neglect to do so; and such a regulation is a reasonable one. Ibid.

116. Duty of passenger to submit to such regulation. A passenger upon a railroad who does not purchase his ticket before entering the cars, and who refuses to submit to a regulation of the company, requiring him to pay a higher fare than those who purchase their tickets at the office of the company, and shows no suffici ent excuse for such refusal, may be expelled from the cars, with no unnecessary violence. Ibid.

117. Duty to provide station accommodations. There exists a common-law duty on the part of railway companies to provide reasonable accommodations at their stations for passengers who are invited and expected to travel on their roads. McDonald et ux. v. The Chicago and. Northwestern Railroad Company, 26 Iowa, 170; S. C., 29 id. 170.

118. Where station-room is offensive. If the station-room is full, or if it is intolerably offensive, by reason of tobacco smoke, so that a passenger has good reason for not remaining there, it will justify his endeavor to enter the cars at as early a period as possible, and if, in so doing, he receives an injury from the unsafe and dangerous condition of the platform or steps, in a place where passengers would naturally go, the company are liable therefor, if the passenger used proper care, and violated no rule or regula tion of the company, of which he had actual knowledge, or which, as a reasonable man, he would be bound to presume existed. Ibid.

119. In an action against a railroad company to recover for injuries alleged to have been occasioned by defective steps in the end of a platform.

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