184 Iowa 89 | Iowa | 1917
Defendant filed a motion for new trial, assigning numerous grounds therefor. Among the errors assigned was the failure of the court to instruct the jury that the alleged cause of action, except as to the item for injury to the car, was barred by the statute. ■ Later, the court permitted the defendant to amend its motion by moving for a judgment for the defendant, notwithstánding the verdict, on the grounds: First, that it was conclusively shown that plaintiff’s right of action upon each and every item of her claim (except the item for injury to the car) was barred by the statute; and second, that not only was. there no evidence of negligence on the part of defendant, but it conclusively appeared that the accident was caused by the negligence of the deceased. The motion was sustained, the judgment and verdict were set aside, and final judgment entered, dismissing the action at the cost of plaintiff.
II. As the motion was sustained generally, the record does not disclose whether the trial court so ruled on the ground that the action was clearly barred by the statute, or on the other ground assigned, that deceased was chargeable with contributory negligence as a matter of law; but, in the absence of any specification in the order, it may be sustained if we find either ground to be well taken.
The statute, Code Section 3447, is -a familiar one:
“Actions may he brought within the times herein limited, respectively, after their causes accrue, and not after-wards, except when otherwise specially declared:
“1. Those founded on injury to- the person on account of defective roads, bridges, streets or sidewalks, within three months-, unless written notice specifying the time, place and circumstances of the injury shall have been served upon the county or municipal corporation to- be charged within sixty days from the happening of the injury
Counsel for appellant seeks to take his case from the scope of this statute by pointing out that the notice is required where the cause of action is founded on injury to the person, and argues that it has no application when the damages sought are for the death of the person. This distinction has been drawn by the courts of several states. But in such cases are found distinct statutes, specifically providing for the recovery of damages for wrongful death at the suit of the administrator, estate, or family dependents; and this provision is held not to be subject to the requirement of other statutes, making it necessary, to serve notice of an injury io the person. Such holding is quite clearly right under the statutes which they undertake to construe. McKeigue v. City of Janesville, 68 Wis. 50 (31 N. W. 298); Laconte v. City of Kenosha, 149 Wis. 343 (135 N. W. 843); Nesbit v. City of Topeka, 87 Kan. 394 (124 Pac.
We therefore reach this result: that the rendition of judgment for the defendant upon plaintiff’s claim for damages on account of the injury to and death of deceased must be affirmed, because her right of action is clearly barred by the statute of limitations; but the judgment dismissing her claim for damages because of the injury to the automobile will be set aside, and a new trial upon that issue alone is hereby ordered. For this purpose, the cause will be re rnanded to the district court. Costs will be apportioned, and taxed one half to each party. — Affirmed in part; reversed in part.