154 Iowa 167 | Iowa | 1912
For a full understanding of the bearing of the alleged errors committed by the lower court in the trial of the case, it will be necessary to recite quite fully the evidence introduced for the plaintiff, the sufficiency of which to justify a verdict against defendant is questioned by the appellant. The plaintiff, a married woman, residing with her husband on a farm near the town of Lenox, came to that town in the afternoon of August 9, 1909, in a buggy, driving a team of horses which she and other witnesses described as quiet and easy to manage, and not afraid of automobiles. She hitched her horses, about 4 o’clock, at the so-called “hitching rack” on the south side of Ohio street, running east and west through the
My mother went with me when I started home. Father and mother both went to assist me to go home. I untied the team. My mother was on one side, patting the horse on the neck; the team was named Bessie and Daisy. When I got into the buggy, I took hold of the lines, one in each hand; the team was standing perfectly quiet. The first thing I noticed about the team being frightened they turned their heads and shied. I did not know what caused them to do it. I held onto the lines, and they whirled and reared and turned with me. When they turned a half circle, I saw what caused the trouble. I saw an automobile by the Brown building, right west of me, coming towards me. It was Sam Wainwright’s automobile. I said: ‘Mother, there is an automobile. Catch Bess! Catch Bess, quick!’ Mother caught hold of the rein; it was tied up to the backhand. I went around unce and a half before the buggy upset. Q. Where was the. automobile when they became very violent? A. It would be turning south. It was not out of sight when I called for help. I saw some people standing on the corner, and I called for help.
In explanation of this testimony and that which is to be hereafter referred to, it should be stated at this place that plaintiff’s mother was at the left-hand side of the team,
Mrs. Madden, the mother of plaintiff, testified that she went across the street with the plaintiff to see her off, and while the plaintiff unhitched the team, stood beside the horse “Bessie,” the one on the left side of the team, with one hand on the bridle rein, the other on the neck of the horse, petting her; the team being headed a little southeast. As appears from the abstract, she continued as follows:
When my daughter untied the team, she began backing the team to start east; she gathered up the lines, and I asked her if she was all right, and she said she was. She had one line in her hand, fastened together. I came through under the rack to go home, and she was starting home, and the horses started up and started to whirl around in a ring. She hollered for me to catch them, hollered, ‘Ma, catch Bess,’ and I ran forward and got Bessie by the bridle rein and held on it, and I was not strong enough to stop the team; they kept going “around in that ring, in that circle, and it took me' around with them. They went around twice before she was thrown out. After the buggy was upset, the buggy toppled over. After she was thrown out, the team went around and came over near to where she was lying. If they had -gone a step or two farther, they would have stepped on her . The road was dry and hard, and she fell in the road a little to one side of the traveled portion.
On cross-examination, this witness testified that the team was going around in a ring when plaintiff asked her to take hold of them, and that the horses were scared; “they were jumping around like horses do when they ax’e scared.”
John Madden, the father of plaintiff, testified that when plaintiff went from his house across the street to the team he was going from the house toward and diagonally across Main street, and did not see plaintiff get into the buggy, but hearing her call, he looked towards her and knew that she was in trouble, and at once went in that direction; that as he looked, he saw an automobile coming from the west, as he thought, by the Brown building, near the back end of it, which would be seventy or eighty feet from Main street; that when he first saw the automobile he was ten or twelve feet from the corner of the Madden building, and did not again notice the automobile, and that when he looked towards the team the horses were headed towards the east and turning towards the north. Though he went directly to the team, the plaintiff was thrown out before he reached her.
One Hudson testified for the 'plaintiff that, standing at the corner of the Brown building, he saw the team “jumping and rearing around,” looking toward the automobile, when he fii’st noticed it; and that the automobile, which he noticed at the same time coming along Ohio street from a point further west than the Brown building, turned and “went down Main street pretty close to the east side;” and
One N. O. Davidson stated that, as he was sitting on the south side of the Brown building, on the sidewalk, he saw plaintiff’s team as she unhitched it, the heads of the horses being a little to the east, and that “at that time there seemed to be something that frightened the team, and, they started to go around, and Mrs. Madden got hold of the one horse’s hitch rein, and that pulled them around in a circle.” He heard no one call out. About the time that the team showed signs of fright, he saw the automobile coming from the west opposite to him, and turn around the corner into Main street.
One Gordon testified that he was sitting with N. O. Davidson in front of the Brown building when his attention was attracted by the team, and saw plaintiff get into the buggy. He also noticed there was an automobile coming from the west on Ohio street, which turned south on Main street, “and while this automobile was turning around the corner this team made a whirl to the east, and upset the buggy,” and threw plaintiff out. And, further: “Just as the automobile turned, I noticed the horses looking up, and as this automobile, came around the comer, just as it was turning the comer to go down Main street, they turned to the east and made a whirl to the north, and I think the second time they came around that threw her out. The team turned to the east, and then to the north.” And further: “AYhen I first noticed the automobile, it was crossing the crossing that runs north. The team seemed to be standing quiet until it came up.”
One McCracken testified that, as he was standing in front of the Madden store, looking east, he noticed the frightened team just as the automobile went around the corner; and that he did not know what caused the team to be frightened, although he saw nothing else calculated to frighten horses, except the automobile: And, further: “To the best of my knowledge, wkep. I was looking east on Ohio street toward the team, the automobile had gone past and out of the line of vision before Mrs. Oresswell fell from the buggy.” He said the team was not rearing or plunging, but only seemed frightened and going around.
One Bennett testified that at the time of the accident he was about to cross Main street in front of the Madden building, and did not observe plaintiff’s team until after the automobile had passed and gone down Main street, and then, looking up, 'he saw people running toward the team.
Hugh Oresswell, the brother of plaintiff’s husband, said that, as he crossed Ohio street east of the place where the team was hitched, he saw plaintiff’s mother unhitching the team .before they started; that the team was quiet when he saw it; and that he did not see, nor know at the time of, any accident.
Defendant and those who were with him in the automobile testified quite explicitly, and in the miain without contradicting any of the testimony for plaintiff, that as the automobile came near Main street, they saw plaintiff’s team backing away from the hitch rack and turning torvards the north, but that the team exhibited no signs of being frightened by the approach of the automobile; and that, before any accident happened, or there was any indication of an impending accident, the automobile had turned south on Main street and passed beyond the sight of the horses. If the circumstances were correctly represented by these witnesses for the defendant, then, of course, defendant was in no way at fault. Even if he had, on reaching the Main street crossing, noticed that the team was frightened, he might well have thought, as a reasonably prudent person, that the most effectual precaution he could take to avoid the further frightening of the team was to turn south on Main street and get his machine out of sight and hearing of the horses as soon as practicable. We are not pre
The next instruction was to -the effect that plaintiff must show, in oi'der to entitle her to a recovery, that “the acts or fright of the team was occasioned by the automobile, as managed and operated by the defendant at the time,” referring in this connection to other possible causes of the accident, none of which would entitle plaintiff to recover.
Following this, an instruction was given, the material portion of which was in this language:
No. 3: If you find that the accident complained of was occasioned by the defendant in the operation of an automobile, the next inquiry to be determined is, Was the defendant guilty of any negligence in the operation of said automobile wlxich occasioned said accident? The mere fact, if established, that the plaintiff’s team was frightened, and she was thereby injured by the defendant’s automobile, is not sufficient. The plaintiff is required to go further and show that in the operation of said automobile the defendant was guilty of some negligence which occasioned the said injury.
The court proceeded then to give several instructions, relating to the specific grounds of negligence which had already been recited in the statement of issues, all of the same general purpont, -as follows:
No. I: The plaintiff contends that the defendant was guilty of negligence in running the said automobile at the time complained of at an unlawful, high, and dangerous rate of speed. Under our law, no person shall operate an automobile on a public highway or street at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway or street, or so as to endanger the life or limb of any person, or, in any event, in the closely built-up portion of a city or town at a greater rate than one mile in six minutes. Upon approaching a crossing of intersecting highways or streets, a person operating an automobile shall have it under control and operate
No. 5: The plaintiff contends the defendant was guilty of negligence in not sounding a horn or bell when approaching the plaintiff and the crossing. Under our law, every automobile is required to be provided with a suitable bell, horn, or other signal, in order to give warning to others of the approach of the machine. It is the duty of one operating an automobile to sound such bell, horn, or other signal, when approaching a crossing in a city or town which is thickly populated, or in turning a corner in such a place, or on approaching any person upon the public highway under such circumstances as would make such act necessary, in order to give timely notice and warning of the approach of the machine; and a failure to give such notice would constitute negligence.
No. 6: The plaintiff claims the defendant was guilty of negligence in not stopping his said machine, or slowing it down, when he saw, or in the exercise of reasonable care, should have seen, that the horses which the plaintiff was driving were restive and becoming unmanageable. It is the duty of one operating an automobile, when approaching another person on the highway driving a team, if he sees, or by the exercise of ordinary care should see, that the team which he is approaching is restive and becoming unmanageable, to stop his automobile, or to slow it down, if by so doing he can prevent injury to the person driving the team. A failure to stop or slow down under such circumstances constitutes negligence.
No. 7: It is claimed by the plaintiff that the defendant was guilty of negligence by not rendering assistance to the plaintiff. One operating an automobile, when he' sees, or in the exercise of ordinary care should see, that a team upon the highway which he is approaching is becoming restive and unmanageable, should not only stop his own machine, but go to the assistance of the person driving the frightened (team, if by so doing he can prevent injury to the said person driving said team. A failure in this regard constitutes negligence.
No. 9: The plaintiff contends that the defendant was guilty of negligence in driving a car which was painted a vivid and glaring red color. The color of a oar is a matter of taste with the owner or user. The law does not require any particular color to-be used. If, however, the jury find from the evidence -that the defendant’s car was painted a vivid and glaring red color, and such as would have a tendency to frighten and alarm horses, greater care would be required in the management of such car than one whose color and appearance was not so likely to alarm and frighten horses. One in charge of a machine must always have in mind the particular characteristics of his car, and govern himself accordingly. A failure to use reasonable care in the management -of such -a machine, under circumstances calculated to frighten a team, would constitute negligence.
No. 10: Unless the jury find the defendant guilty of negligence on one or more of the grounds stated, and herein referred to, they should render a verdict for the defendant. The defendant’s negligence in the matter complained of must be established, in order to warrant a recovery; and <the inquiry should be limited to the specific charges of negligence herein stated.
In considering the correctness of these instructions as applicable to the evidence, we have occasion to inquire, first, whether the court sufficiently emphasized the necessity of a finding by the jury, as to each of these alleged grounds of negligence, that it had some proximate connection with defendant’s injury; and, second, whether as to each of these alleged grounds of negligence submitted there was some
First. It appears from instruction 1, above quoted, the court correctly told the jury that plaintiff’s injury must be found to have been the result of defendant’s negligence, and then correctly stated in instruction 3 that the mere fact of the frightening of the team by the operation of defendant’s automobile, and the consequent injury to plaintiff, would not be sufficient to sustain a verdict -against the defendant; but that plaintiff must go further and show that in the operation of the 'automobile the defendant was guilty of some negligence which occasioned such injury.- However, after instructing at length with reference to the various alleged grounds of negligence, to the effect that a failure to exercise the precautions recited would constitute negligence on defendant’s part, he concluded (instruction 10) with the statement that, unless the jury found the defendant guilty of negligence on one or more -of the grounds stated, it should return a verdict for the defendant, without cautioning them that to authorize a verdict for plaintiff they must not only find that defendant was negligent in one or more of the respects referred to, but, also, that they must find that the negligence of the defendant in one or more of -these respects occasioned or contributed to the accident and plaintiff’s resulting injury. Taking all the instructions together, a lawyer could well understand that the finding of_such connection was essential; but we very much doubt whether the jurors, after reading the long recital of acts and omissions which might constitute -negligence, would bear in mind the necessity of going back to instruction 3 for the purpose of determining whether a finding of negligence in any one of these respects would justify a verdict for plaintiff. It seems to us that the natural conclusion of the jury, after reading instructions 4 to 9, inclusive, would be, under instruction 10, that if they found negligence in any one of these respects, then they could return a verdict
While there is evidence tending to show the operation of defendant’s automobile, just prior to the accident, at an unlawful rate of speed (although plaintiff’s witnesses, none of whom showed any special qualifications for judging of the speed of an automobile, differed as to the speed, some fixing it at fifteen or twenty ihiles an hour, which would be unlawful, and others at eight or ten miles an hour, which would be lawful, unless, under peculiar circumstances, a lower speed might be required in the exercise of reasonable care), we find no evidence whatever in the record tending to show that an unlawful speed had anything whatever to do with the frightening of plaintiff’s horses, even though they may have been frightened by the approach of the automobile. If they saw the automobile at all, it must have been but for a moment, and after they were already frightened; and it is inconceivable to.us that a lower rate
The testimony of the witnesses is in direct conflict as to whether or not defendant sounded the horn on his 'automobile as he approached the crossing ¡at Main street; but, even if he did not do so, it is clearly apparent that plaintiff could not, if warned by the sound of the horn, ¡have taken any precautions against the accident which she did not take, for the team was already backing away from the hitch rack and turning to the left, and plaintiff and her mother -were using their best efforts to control the horses, when the automobile approached the Main street crossing. It is not pretended that the duty to give timely warning would not have been fully discharged if the defendant had sounded his horn as he reached the Main street crossing, when he would have been about-200 feet from the team. Under the circumstances, indicating that, if the team was frightened at all by the approach of the automobile, it was frightened in a way not to have been reasonably anticipated, either by plaintiff or by defendant, the sounding of the horn might in itself have constituted negligence; but, in any event, a failure to sound the horn could not have been the 'occasion of the fright of the team.
The failure of defendant to render assistance to the plaintiff could not, under the evidence, have caused or contributed to plaintiff’s injury. Others who were nearer to the plaintiff in her peril than defendant could have been at any time, if he 'had stopped- his automobile, proceeded at once to plaintiff’s assistance, and before they could reach her she had been thrown out, and the injury had been done. The jury may have attached very considerable blame to the defendant for failing to nnanifest an interest in plaintiff’s safety; but such lack of interest, even if it had been shown to exist, could not in any way have contributed to the injury which she actually suffered.
A¥e discover n(o evidence in the record tending to show
We reach the conclusion that the court submitted to the jury, as possible grounds for recovery, those last above referred to, as to which there Was no evidence tending to show that any one of them caused or contributed to the frightening of the plaintiff’s team .and the consequent injury to her, if such injury resulted from the frightening of the team, which was a question of serious dispute under the evidence.
For the errors pointed out, the judgment must be reversed and the case remanded for a new trial. — Reversed.