Carroll County v. Ruggles.

ing obligation against them. There is a large number of authorities cited by counsel for both parties upon the question of law arising upon these facts. Many of these authorities are not of much aid in the determination of the question, because they are not entirely in point. It appears, also, that such as are applicable to the question are not in accord. But our examination of them has led us to the conclusion that the great preponderance of authority, and the better principle, leave but little doubt that the sureties are liable. Indeed we doubt if any case can be found where a bond such as this appeared to be upon its face, and which was signed by the sureties in blank- that is, without the names of others inserted in the bond who were to be procured as sureties has been held invalid because the names of the sureties were procured by the principal upon condition that he would procure others to sign the instrument.

The case of Dair v. United States, 16 Wall. 1, is precisely in point. The defense of the sureties was the same in that case as in this. The bond was a blank. The name of the surety to be procured as a condition was not in the bond when the sureties signed their names. It was held that the defendants were liable, and the cause is distinguished from Pawling v. United States, 4 Cranch, 219, in which the additional sureties to be procured were named on the face of the bond. In Dair's case one Cloud was to be procured as a co-surety. The court says: "If the name of Joseph Cloud appeared as a co-surety on the face of this bond, the estoppel would not apply, for the reason that the incompleteness of the instrument would have been brought to the notice of the agent of the government, who would have been put on inquiry to ascertain why Cloud did not execute it, and the pursuit of this inquiry would have disclosed to him the exact condition of things."

The case of Brown v. Perkins, 42 Mich. 501, was a suit on a guardian's bond. The bond was drawn up on a printed form, and filled in with all but the names of the obligors. It purported to be drawn to bind the guardian as principal, and the word "sureties" was partly printed and partly written, with a blank for their names not filled in. Brown, the surety, signed the bond, while no name was inserted as surety, and he offered to show that when he had signed it he gave it to the guardian with an agreement that he should procure the signature of one Withey as another surety, and that the bond should not be used without Withey's signature; that the VOL. LVIII — 29

Carroll v. County of Ruggles.

guardian did not procure Withey's signature, but took the bond to the judge of probate, who wrote in Brown's name, and changed the word "sureties" to "surety," and made an order of approval. It was held that the surety was liable upon the bond. And see also, McCormick v. Bay City, 23 Mich. 457; State v. Peck, 53 Me. 284; State v. Pepper, 31 Ind. 76; Millett v. Parker, 2 Metc. (Ky.) 608. The defendants, among other cases, rely upon Daniels v. Gower, 54 Iowa, 319. That was an action against sureties upon a non-negotiable promissory note, and it was held that when an instrument of that kind was signed by sureties, and deposited with a stranger to the note, to be delivered upon a certain condition, and was delivered by the depositary to the principal maker, and by him to the payee, in violation of the condition, the delivery was not binding upon the sureties, and the note against them was not enforceable. It is true, it is said in that case that the principle involved in cases arising upon official bonds is very nearly the same. But the question as to the rights of sureties upon official bonds was not before the court, and what is said in the opinion in relation thereto was not essential to the determination of the case.

The case of Pepper v. State, 22 Ind. 399, cited in the opinion, is not in point in this case, because in that case the names of certain persons were inserted in the body of the bond, and a part only of such names were afterward signed to it. It was a case similar to Pawling v. United States, supra.

Our examination of this question in this case has convinced us that the rights of parties of official bonds are not just like the rights of parties to purely personal transactions. A board of supervisors should not be required to compel the attendance of sureties to official bonds, to ascertain whether their names were affixed with conditions. They do not even have the power to compel such at tendance. The time and place for the approval of such bonds are fixed by law. The board ought not to be expected to follow the principal over the county, and seek out and interview the sureties upon the subject of their obligation. It was the duty of the sureties to see that the principal in the bond, who was their agent, and who undertook to procure the additional sureties, performed that duty, and in the event of his failure to do so withdraw from the bond before its approval. When the bond is in proper form, there is nothing to apprise the board of superisors of any conditions or limitations upon the obligation of the parties thereto, and sureties

Burns v. Chicago, Milwaukee & St. Paul Railway Company.

ought not to be allowed to wait until a defalcation occurs to make known and avail themselves of private stipulations and conditions between themselves and their principal. We have no doubt that nearly every official bond now in force in this State, including bonds of public officers, executors, administrators and guardians, is as vulnerable to a defense of this kind, real or assumed, as the bond in suit; and if we were to hold that such a defense is available to a surety, it would in our opinion tend very greatly to impair the value of official bonds. As is said in Dair v. United States, supra: "It is easy to see if the obligors are at liberty, when litigation arises and loss is likely to fall upon them, to set up a condition unknown to the person whose duty it was to take the bond, and which is unjust in its result, that the dificulties of procuring satisfactory indemnity from those who are required by law to give it will be greatly increased. Especially is that so since parties to the action are permitted to testify.” Judgment affirmed.

BURNS V. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY. (69 Iowa, 450.)

Negligence-contributory — presumption›.

An experienced brakeman, when last seen alive, was setting the brake on a freight car. The train separated in front of him and he was found on the track run over and killed. Held, that this proof justified the submission of the question of contributory negligence to the jury. (See note, p. 229.)

A

CTION for death of plaintiff's son. The opinion states the case. The plaintiff had judgment below.

Burton Hanson and Noble & Updegraff, for appellant.

S. P. Adams and A. Chapin, for appellee.

SEEVERS, J. The plaintiff's son was a brakeman on a freight train in the employ of the defendant. The defendant was moving a train consisting of seventeen or eighteen freight cars, westward from McGregor toward Austin. There were three brakemen on the train. Strang was head, the deceased the middle, and Allen the rear brakeman. There is on the track a sag, then a rise or "hog's back," and then a down grade. When about one-half of the train

Burns v. Chicago, Milwaukee & St. Paul Railway Company.

was on thehog's back," it separated between the fifth and sixth cars from the rear. About the time the sag was reached the plaintiff's son and the rear brakeman were on top of the cars, the deceased being on the fifth car from the rear, and the other brakeman on the car next to the caboose. The evidence tended to show that the deceased set the brake on the car he was on just prior to the separation. His body was found shortly afterward on the track. He must have fallen from the car to the ground, and beeu run over by the rear portion of the train. Whether the fall was accidental and through carelessness on his part, or whether he jumped from the train there is no evidence tending to show, except that there were some marks or indications on the ground that he struck it first with his feet.

[Other points omitted.]

The defendant insists that there is no evidence of negligence on the part of the employees, and that the plaintiff failed to show that his son was not guilty of contributory negligence. The only evidence of negligence, as we have said, is that the forward brakeman failed to apply the brakes at the proper time. This must necessarily depend on the condition of the track, that is, the character and extent of the grade, and perhaps other matters should be considered. It must be confessed that there is little or no evidence except the fact that the pin broke and the train separated. Whether this alone is sufficient to authorize a recovery we do not determine, for the reason that on another trial the evidence may be materially different.

As to the other question, all that appears is that the deceased was an experienced brakeman, of good habits. It must be presumed that he was in his proper place, engaged in the performance of his duties; that he properly applied a brake on the fifth car, but at which end does not clearly appear, but it may be the jury was authorized to find that the brake was near the forward end of the car. The train separated between that car and the one preceding it, and in some manner unknown, the deceased fell from the train. When last seen alive, the deceased was in a proper manner performing his duties, and therefore was not negligent. In about one minute afterward he disappeared, and was probably then dead. There are cases which hold, when the evidence wholly fails to show that the deceased was using due care, that there cannot be a recovery.

Corcoran v. Boston & A. R. Co., 133 Mass. 507; Riley ·

Burns v. Chicago, Milwaukee & St. Paul Railway Company.

v. Railroad Co., 135′Mass. 292. It has been said that "when circumstances point just as much to the negligence of the deceased as to its absence, or point in neither direction, the plaintiff should be nonsuited." Cordell v. New York Cent. & H. R. R. Co., 75 N. Y. 330; s. c., 26 Am. Rep. 550. This court however has held that the jury may infer due care under circumstances quite similar, if not in principle identical, with the case at bar. Greenleaf v. Ill. Cent. R. C., 29 Iowa, 14. See also Allen v. Willard, 57 Penn. St. 374 (380); Gay v. Winter, 34 Cal. 153; Strong v. City of Steven's Point, 62 Wis. 255. This last case is much like the case at bar.

We are not prepared to say that there was no evidence which authorized the court to submit the question of due care on the part of the deceased to the jury, who had the right to consider all the circumstances, including the known habits of the deceased, and the instincts of self-preservation with which all men are imbued. If the cause or manner of the death were wholly unknown, it may be that a different rule should prevail.

[On other grounds.]

NOTE BY THE REPORTER.

Reversed.

·See Cassiday v. Angell, 12 R. I. 447; 8. C., 84 Am. Rep. 790; Dallas v. Wichita Ry. Co., 61 Tex. 427; s. c., 48 Am. Rep. 297; Louisville, etc., R. Co. v. Goetz, Admr., 79 Ky. 442; s. C., Chase v. Me. Cent. R. Co., 77 Me. 62; s. c., 52 Am. Rep. 744. Rep. 563.

42 Am. Rep. 227; Also note, 28 Am.

Mr. Thompson says (Neg. 1175): "It is held in several of the States that in order to make out a prima facie case the plaintiff must not only show neg. ligence on the part of the defendant, but he must also show that he was in the exercise of due care in respect to the occurrence from which the injury arose. This is held in Massachusetts, Maine, Illinois, Iowa, Connecticut, Mississippi, Michigan and Indiana. In Pennsylvania, Missouri, Wisconsin, Kentucky, Maryland, Kansas, Alabama, Minnesota, New Jersey and California, it is held that the negligence of the plaintiff contributing to the injury complained of is a matter of defense, and that ordinarily the burden of proving it is on the defendant. In New York and several other States the decisions are irreconcilable." These other States, according to Mr. Thompson, are Vermont, Texas and Ohio. Mr. Thompson further says that in the first class of States it is held that proof of contributory neglect need not be direct but may be inferred, and in the second, if the plaintiff's case raises an inference of neglect on his part, he must show that he was not guilty of neglect. Mr. Thompson evidently leans in favor of the doctrine that the burden is on the defendant.

On the other hand Mr. Beach, the latest writer, leans heavily the other way. Cont. Neg. 425. He says "the decided weight of authority" is that other way, and that “this is the rule in Massachusetts, Maine, Mississippi, Louisiana, North Carolina, Michigan, Oregon, Illinois, Connecticut, Iowa and Indiana." He