
    C. D. Martin, Administrator of the Estate of A. F. Flanagan, Deceased, Appellant, v. The Chicago, Rock Island & Pacific Railway Company.
    1 Action for Personal Injury: speed of train: violation op ordinance: negligence. Habitual violation of an ordinance regulating the speed of trains does not relieve railway company from the imputation of negligence.
    2 Speed of Train: who benefited by ordinance. The benefits of an ordinance regulating speed of trains may be claimed by anyone coming within its protection.
    3 Assumption of Risk by Employe: liability of employer. An employe, who, knowing and appreciating a danger, assumes the risk of it, absolves his employer from liability for injury, although the employer may be primarily responsible for the danger. ^
    
      4 Assumption of Risk: nature of. In the matter of “assumption of risk’ ’ it is immaterial whether the risk arises from a violation of a common law duty or an obligation imposed by ordinance.
    5 Speed of Train: operating cause of injury. Where an employe assumes the risk incident to the ordinary speed of the train, to render the railway company liable for an injury, it must bo shown not only that a greater rate of speed was negligence, but that it was the operating cause of the injury.
    
      Appeal from Scott District Oourt. — Hon. James W. Bolinger, Judge.
    Saturday, October 25, 1902.
    Action for damages. Judgment on directed verdict. The ■plaintiff appeals.
    
    — Affirmed.
    
      E. M. Sharon and Ely <& Bush for Appellant.
    
      Cook c& Dodge for appellee.
   Ladd, 0. J.

The freight train, composed of thirteen loaded cars, twenty-six empties, and the caboose, was made np at Rock Island, from which place it departed at five o’clock in the morning. When it reached Perry street, in Davenport, a second .engine or “helper” was attached, and together the two pulled the train west to Farnam, where the absence of the head brakeman. was first discovered. ' Evidently he had fallen from the top of the train about fifteen or twenty feet west of Fillmore street, in Davenport. The circumstances warranting this inference are. (1) A dint in the snow between the tracks at that place, as though a person had fallen some distance on the hip; (2) his lantern just outside of the track; (3) parts of his body and blood stains from that point to the place where the head and trunk were found. It may also be inferred that he fell between the third and fourth cars from the engine, for blood stains were found on tlie front trucks of the fourth car, and from there on back. The running board of the third car was about a foot wide, while that on the fourth car was a foot higher, and consisted of three strips about an inch apart, and projecting over at the end five or six inches. The tops were frosty, but upon examination no indications that he had slipped were discovered. The wind was blowing from the northwest, the direction the train moved, at a velocity of five miles an hour. The temperature was 11^-degrees above zero; the humidity of the atmosphere, 90 per cent. Fillmore street is one block west of the semaphore, two blocks west of ■Marquette street. Between these streets are five switches, —one at the semaphore, connecting with defendant’s branch line to the southwest, and the others with tracks to local industries. From Perry street to Fillmore the road was slightly undulating, but from Fillmore street to Farnam, a block less than 2.7 miles away, the up grade was 47-| feet to the mile. Opinions as to the speed of the train differ Avidely, but the jury might have found it anywhere between twelve and twenty-five or thirty miles per hour-All agree that it exceeded six miles an hour, the limit fixed by the ordinance of the city of Davenport. The defendant, then, was negligent in violating the ordinance, and the three grounds of the motion on which the jury were directed to return a verdict raise the questions: (1) Did such negligence occasion the injury to deceased? (2) Did deceased, by any fault on his part, contribute to his injury? And (3) had he assumed the risk of the high rate of speed at which the train was.moving?-

I. The ordinance of the city of Davenport prohibited trains from moving within the corporate limits at a speed exceeding six miles an hour. The evidence showed that it was customary on defendant’s line for trains such as that in question to leave for the west at a much higher speed, in order to make the grade; and, as deceased had been engaged in work as brakeman something like seven months in all, he must have known of this practice. Of course, the mere fact that defendant habitually violated the ordinance does not relieve it from the imputation of negligence. Hamilton v. Railway Co., 36 Iowa, 31; Beard v. Railway Co., 79 Iowa, 522; Weber v. City of Creston, 75 Iowa, 16; Conners v. Railway Co., 74 Iowa, 383. Nor can it be said that ordinances of this character have for their sole object the protection of those having occasion to go on or across the tracks. They are not thus limited in their , , , terms, lheir benefit may be claimed oy any person coming within their protection. Railroad Co. v. Gilbert, 157 Ill. 354 (41 N. E. Rep. 724); Railway Co. v. Eggmann, 170 Ill. 538 (48 N. E. Rep. 981, 62 Am. St. Rep. 400); Railroad Co. v. Moore, Ind. Sup. (53 N E. Rep. 290, 44 L. R. A. 638); Bluedorn v. Railway Co., 108 Mo. 439 (18 S. W. Rep. 1103, 32 Am. St. Rep. 615.) Nevertheless the evident purpose in their enactment is to guard against injury to those using the streets, rather than the employes of the railroad engaged in operating the trains.

In undertaking the work of brakeman with knowledge that the ordinance was ignored by the railroad company, or continuing at work without complaint after ascertaining the fact, did deceased assume the risk of the danger incident to its violation? The authorities are in sharp conflict on this proposition. Those holding that such a risk is never assumed go on the theory that, as the assumption of risk is based on an implied contract, it would be opposed to sound public policy to permit one to agree in advance to a violation óf a statute or city ordinance. In Narramore v. Railroad Co., 37 C. C. A. 499 (96 Fed. Rep. 298, 48 L. R. A. 68,) the statute enjoined on railroad companies the duty of blocking switches, and Judge Taft, after reviewing the decisions, concluded that: “ ‘Assumption of risk’ is a term of the contract of employment by which the servant agrees that dangers of injury obviously incident to the discharge of the servant’s duty shall be at the servant’s risk. In such cases the acquiescence of the servant in the conduct of the master does not defeat a right of action on the ground that the servant causes or contributes to cause the injury to himself, but the correct itatement is that no right of action arises in favor of the servant at all, for, under the terms of the employment, the master violates no legal duty to the servant in failing to protect him from dangers, the risk of which he agreed expressly to assume. The master is not, therefore, guilty of actionable negligence toward the servant. * * * This makes logical that most frequent exception to the application of doctrine by which the employe who notifies his master of a defect in the machinery or place of work, and remains in the service on a promise of repair, has a right of action if the injury results from the defect while he is waiting for repair of the defect, and has reasonable ground to expect it * * * If, then, the doctrine of the assumption of risk rests really upon contract, the only question remaining is whether the courts will enforce or recognize', as against a servant, an agreement, express or implied, on his part, to waive the performance of a statutory dut-y of the master, imposed for the protection of the servant, and in the interest of the public, and enforceable by criminal prosecution. We do not think they will. To do so would be to nullify the object of the statute. The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal iii regard to the dangers of their employment. The manifest legislative purpose was to protect the' servant by positive law, because he had not previously shown himself capable of pirotecting himself by contract, and it would entirely defeat this purpose thus to permit the servant to contract the master out of the statute. It would certainly be novel for a court to recognize as valid an agreement between two persons that one should violate a criminal statute, and yet, if the assumption of risk is the term of a contract, then'the application of it in the case at bar is to do just that. ” This is perhaps the clearest expression of the reasons persuading some courts to hold that in such cases the maxim, “ Yolenti non tit injuria” will not apply. The point appears to have been touched upon in several English cases. See Thomas v. Quartermaine, 18 Q. B. Div. 685; Baddeley v. Granville, 19 Q. B. Div. 423. In the latter, a statute required a banksman to be present at the mouth of a pit when miners were going up and down. During the night it was the defendant’s practice to dispense with him, and of this the plaintiff was aware. The injury was in consequence of this omission. The court held that plaintiff could recover; Wills, J., saying: “There ought to be no encouragement given to the making of an agreement between A and B that B shall be at liberty to break the law which has been passed for the protection of A. Such an agreement might be illegal. * * * But it seems to me that if the supposed agreement between the deceased and defendant, in consequence of which the principle of ‘ Volenti non M injuria;’ is sought to be applied, comes to this: that the master employs the servant on the terms that the latter shall waive the breach by the master of an obligation imposed on him by statute, and shall connive at his disregard of the statutory obligation imposed on him for the benefit of others, as well as of himself, — such an agreement would be in violation of public policy, and ought not to be listened to.” A careful reading of the opinions in Durant v. Mining Co., 97 Mo. 62, (10 S. W. Rep. 448); Grand v. Railroad Co., 83 Mich. 564 (47 N. W. Rep. 837, 11 L. R. A. 402); Coal Co. v. Taylor, 81 Ill. 590, and Boyd v. Coal Co., Ind. App. (50 N. E. Rep. 368) cited in the Narramore Case, discloses that, although the question might have been raised, it was not, in any of them. We think the learned judge, in writing that opinion, assumed too much, in treating the assumption of risk as purely a matter of contract. True, the books speak of it as resting on an implied agreement between the employer and employe. It is more accurate to say that the services of the one are engaged by the other, and from the relationship the law implies certain duties, obligations, and disabilities. No mention is made of these, but they pertain to the relationship of the parties and the status then assumed.

Says Mr. Dresser, in his valuable work on Employers’ Liability (section 82): “The contract of hiring depends upon the same principles as other contracts, yet it has one peculiarity, in that it creates a status or relationship between the parties, to which the policy of the law has affixed certain rights, duties, and disabilities to be observed by each, irrespective of any understanding or supposed agreement between them. These duties and disabilities arise when the relation is created, and Continue until it ends, and for the most part are determined by the condition oí affairs when the contract of hiring is made. It is usual and convenient to treat them as terms of an implied contract, but it is a contract implied from the relationship, and not from the agreement of the parties, and has none of the incidents of a technical contract.” The author then points out that no consideration is essential, as a mere volunteer may be in the same position as though hired, and an infant whose agreements are voidable may assume disabilities as an adult. See Barstow v. Railroad Co., 143 Mass. 535, (10 N. E. Rep. 255). If based on contract alone, then an action for injury by the servant, resulting from a breach of a duty assumed by the master, should be ex contractu. ■As said in Jaggard Tort, 23: “Such rights and duties are not properly contractual, nor is their breach a contract wrong. ” See Ames v. Railroad Co., 117 Mass. 541 (19 Am. Rep. 426). The breach is of a duty which the law implies from their relationship, and is, like any other omission of duty which the law exacts, negligence. The master’s liability may be tested either by considering the employe’s conduct, and answering whether, in view of his undertaking, he book his chance on the particular act of which complaint is made, or by ascertaining whether the employer owed the employe any duty in relation thereto. While the first may be the more convenient, the last is the more logical, as it would seem inquiry should be directed to ascertaining the existence of an obligation, before investigating its possible breach. The employe undertakes the performance of duties and services for compensation, and in doing so takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and, in legal assumption, the compensation is adjusted accordingly. Farwell v. Corporation, 4 Metc. (Mass.) 49, 55 (38 Am. Dec. 339). That is, he engages to perform work under certain conditions. If these are not changed, no duty on the part of the master has been omitted. For instance, if he undertakes to operate defective machinery, the master owes him no duty to repair. In such a case there is no waiver of liability, because none has arisen. But if he knew nothing of the defects, and they were not obvious, the law implies the obligation of the master to put it in safe condition for use. As said in O'Maley v. Gaslight Co., 158 Mass. 135 (32 N. E. Rep. 1119, 47 L. R A. 161): “The doctrine of assumption of risk of his employment by an employe has usually been considered from the point of view of a contract, express or implied; but, as applied to actions of tort for negligence against an employer, it leads up to the broader principle expressed by the maxim ‘ Volenti ht non injuria,’ One who, knowing and appreciating a danger, voluntarily assumes the risk of it, has no just cause of complaint against another who is primarily responsible for the existence of the danger. As between the two, his voluntary assumption of the risk absolves the other from any particular duty to him in that respect, and leaves each to take such chances as exist in the situation, without right to claim anything from the other. In such a case there is no actionable negligence on the part of him who is primarily responsible for the danger. If there is a failure to do his duty according to a high standard of ethics, there is, as between the parties, no neglect of legal duty. ”

Nor can we approve of the distinction attempted to be drawn between employment ■ under conditions condemned as dangerous at the common law, and those prohibited by a city ordinance. In the absence „ .. „ ,, . , . . „ of an assumption ot the risk, an omission of a duty implied by law is precisely as effective in fixing liability as though enjoined by statute. The obligation of the employer to the servant is no greater in the one case than in the other, and we can discover no sound reason for the discrimination which declares the danger in the one case may be assumed, and in the other may not. That advanced in two cited cases, to the effect that permitting the employe to waive the protection of a statute would be in contravention of sound public policy, we regard as untenable. The law implied is quite as much for his benefit, as that enacted by the' city council. If he knows and appreciates the danger, and understands his rights under the statute, there is no more reason for putting him under guardianship, and prohibiting him from waiving lapses in duty of obedience to a rule established by an ordinance or statute, than to one which the principles of justice and public policy raise, independent of legislation, for his protection. Beyond the right of action accruing for the violation of the master’s obligation, regardless of its source, is the punishment the state indicts for the violation of the penal ordinance. The remedies are distinct, and the failure of the servant to demand his private remedy does not interfere with the exaction of a penalty by the state; nor, on the other hand,, will the omission of the state to prosecute furnish the slightest obstacle to the maintenance of an action by the injured party. As said in'the work from which we have already quoted: “It is difficult to see why, if the servant is given an action, he cannot barter it away before the cause of action accrues, as well as fail to bring it when he suffers injury. In neither case is the master’s liability to the state affected, and the state ought not to call in the aid of an individual to enforce a policy it is competent itself to protect. For many reasons,' the servant may prefer to forego the protection; and as this does not change the master’s obligation under the statute, or affect the welfare of the state, it should be permitted. The means of protection, through information to the proper authorities, are at hand, if the servant or another chooses to avail himself of them; and, if he is content to work without safeguards which he has a right to expect, the loss should be his. * •* * If fiie decisions quoted are to be followed3 the odd state of affairs will exist, — of a man who is merely careless being barred, but one deliberately undertaking a dangerous work recovering.”

Some stress is laid on the impolicy of allowing persons to waive obedience of an ordinance or statute. It would seem quite as inimical to the public good to permit a workman to take advantage of the master’s failure to obey the law to which he has consented, as to permit the master to avoid liability because the servant connived with him in such disobedience, by agreeing to work with the conditions as they existed, and according to the method mutually adopted. In other words, it is quite as obnoxious to public policy, independent of the penalty imposed, for the employe to aid and encourage the employer in his disregard of an ordinance, as for the employer to violate it. Our study of the subject has led to the conclusion that, in the matter of assumption of risks, it is immaterial whether they arise from the violation of a common-law duty, or an obligation imposed by statute. As directly in point, see Knisley v. Pratt, 148 N. Y. 372 (42 N. E. Rep. 986, 32 L. R. A. 367); Carpet Co. v. O'Keefe, 25 C. C. A. 220 (79 Fed. Rep. 900); Keenan v. Illuminating Co., 159 Mass. 379 (34 N. E. Rep. 366); Dresser, Employers’ Liability, section 116. Also see 13 Law Mag. & Rev. 19; 3 Elliot, Railroad, section 1345; Electric Co. v. Allen, Ala. (13 South. Rep. 8, 20 L. R. A. 457); Ford v. Railway Co., 106 Iowa, 85. In the first of the above cases, the court, speaking through Bartlett, J. in referring to the claim that public policy required the rigid enforcement of a particular statute, and that this would be contravened by permitting an employe by contract to waive its protection, said: “We think this proposition essentially unsound, and proceeds upon theories that cannot be maintained. It is difficult to perceive any difference in the quality and character of a cause of action, whether it has its origin in the ancient' principles of the common law, in the formulated rules of modern decisions, or in the declared will of the legislature. Public policy in each case requires its rigid enforcement and it was never urged in the common-law action for negligence that the rule requiring the employe to assume the obvious risks of the business was in contravention of that policy. * * * The rule as to risks of service or ordinary risks is entirelj’distinct from the rule of obvious risks, and, .if the statute has added to the duties which the law enjoins upon the employer before the servant can be subjected to the- rule of ordinary risks, then thé default of the employer in the discharge of this statutory duty, resulting in the injury to the employe, would enable the latter to sue. Such a construction of the statute would not in any way limit the doctrine of obvious risks. * * * We are of opinion that there is no reason, in principle or authority, why an employe should not be allowed to assume the obvious risks of his business, as well under the factory act as otherwise. There is no rule of public policy which prevents an employe from deciding whether, in view of increased wages, the difficulties of obtaining employment, or other sufficient reasons, it may not be wise and prudent to accept employment subject to the rule of obvious risks. The statute indeed contemplates the protection of a certain class of laborers, but it does not deprive them of their free agency and the right to manage their own affairs.” The appellant urges that as, under our statute, contracts exempting the company from liability are void, ther'e can be no assumption of such a risk. The answer to this is, as already remarked, that in such a case no liability arises, and hence theré is none from which the contract exempts. Possibly ordinances or statutes might be so framed as to prevent any assumption of risk, but certainly this is not true of an ordinance general in its terms, limiting the speed of trains in a particular locality. And it can make no difference whether the statute relates to the condition of the place where the work is to be done, or the method to be pursued in performing it. If the employe, with full knowledge of either, undertakes to accomplish the task assigned at the place or in the method proposed, he ought not to be permitted to complain, when conditions and methods were precisely as he knew they would be, and to which he has assented.

II. The finding that deceased assumed the risk of injury from the excessive rate of speed within the corporate limits of the city of Davenport leads inevitably to an aPProval of the court’s ruling in directing a verdict for defendant. It appears to have }jeen deceased’s duty to be on top and near the front of the train until the semaphore was reached. After that it was customary to go to the engine. At the next station the helper engine was usually uncoupled and returned, though it frequently went as far as Turnout, 3.6 miles beyond Farnam. But two witnesses observed deceased shortly before the accident. Staffenbiel, a policeman, testified that he saw the train east of Marquette street, and noticed the head brakeman on'top, about six cars from the engine, going forward. McMullen, the rear brakeman, testified: “I stayed on top till near the semaphore. * * * I saw Mr. Flanagan’s light about the time I got to the semaphore. It was near the head end of the train. I could not tell how far from the engine. The light was higher up than it would be if it was setting on the car. I could not see the head end of the train, for smoke and steam which came directly back over the train. * * * I was on top till the engine got by the semaphore at Southwest Junction.” He then went to the caboose. The appellee rightly insists, as we think, that the only reasonable inference to be drawn from the testimony is that deceased fell while attempting to step from the fourth to the third car in going forward to the engine. The latter was a foot lower than the former, and he may have lost his balance in stepping down, possibly not noticing the difference, in the dark and smoke from the engine. Prom the place where Staffenbiel saw him, he would likely have reached the end of the fourth car in amordinary walk, while the train was moving, to the point where he fell. The position of the light when last seen by McMullen obviates the inference suggested by appellant that he was sitting down, and he would not be likely to fall where he did when standing still. But whether he fell while attempting to step to another car, or while standing or sitting near the end, there is nothing in the record tending to explain the cause .of the fall. It was still dark, with the smoke and steam trailing close to the train. The weather was cold, and rendered more disagreeable by the humidity of the atmosphere. But these were conditions which deceased was bound to anticipate when taking employment as brakeman. Whether they had anything to do with the accident can never be known. The jury could have found that the train was moving at from twelve to thirty miles an hour, but it is utterly imp>ossible to say from the evidence that going faster than twelve miles an hour, with which deceased was familiar, caused him to fall, and that this would not have happened if moving at a less speed. If the cars swayed in passing over the blocks and switches, he knew that fact better than any one else, and ought not to have attempted to go to the engine until these were passed. Recovery must be had, if at all, because of negligence in the rate of speed. Compliance with the ordinance having been waived by deceased, in not only consenting, but assisting in operating defendant’s trains at a rate of from eight to twelve miles an hour, there is no liability, unless it can be said that the speed at which this train run, above that mentioned, was not only negligence, but that it was the operating cause of the injury. As the speed above that mentioned, the risks of which he had assumed, cannot be said to have occasioned his death, we need not inquire whether defendant. was negligent, independent of the violation of the city ordinance.

The ruling of the district court is approved, and its judgment aeeirmed.

Weaver, J., concurs in the result.  