BEUTTEL v. cmoaeo, M. & sr. P. RY. oo. 53
ing damages to plaintiff, and the remedy is thejudgment and the ex-
ecution for the collection thereof. In a suit against the indorser or
guarantor of the note, the cause of action is the breach of the contract
of the indorser or guarantor, which is not a contract absolute to pay
the note. It is a conditional contract, wholly separate and distinct
from that of the maker. A breach of the contract by the maker does
not create a breach on part of the indorser or guarantor.
In the cause now before the court, as against the defendant Ems- '
ley, the case on part of plaintiff would be made out by proof that said
Emsley, having charge and control of the train, negligently ran the
same over the deceased, thereby causing his death. As against the
company, it would be necessary to show that the train upon its road,
while under the control of the employes of defendant, was negligently
and carelessly run over the deceased, causing his death; and that the
company had been guilty of negligence in the selection of incompe-
tent employes, or in failing to furnish proper appliances for the man!
agement of its trains; or that the deceased came within the provis-
ions of the statute of Iowa making railway companies liable to a cer-
tain class of employes for injuries caused by the negligence of co-em-
plo es. . ’
Iii the case of the engineer, he is charged with liability by reason
of his own personal negligence, resulting in injury to another. In
the case of the company, it is charged with liability by reason of its
relation of master or employer. If the deceased does not come within
the protection of the Iowa statute, then the fact that Emsley was
negligent would not alone fasten liability therefor upon the company.
If the liability upon pa1·t of the company arises by reason of the stat-
ute of Iowa, then the liability of the company, and of the engineer, are _
not based upon the same legal grounds, nor will the same evidence
sustain a recovery against both. ·
If demurrers had been interposed to the petition filed in this cause,
presenting the question whether the facts averred showed a cause of
action against the defendants, it is apparent that the legal questions
thereby raised would not be the same in the case of both defendants.
As against the defendant Emsley, the facts alleged are that he was
in cont1·o1 of the train as engineer, and that he negligently ran the
same over the deceased; the legal cause of action thus charged being
the violation of the duty of Emsley to use ordinary care in the run-
ning of the train, the same being under his personal control.
As against the railway company, the facts alleged are that the de-
ceased was in the employ of the company as a night watchman; that
the· defendant Emsley was in the employ of the company as engi-
neer, having charge of a certain train upon defendant’s road, which
train was negligently run over the deceased, while the latter was in
the performance of his duty as an employe of the company. The
cause of action thus charged against the company may be based upon
either one of two grounds: (1) A violation. of the common-law duty