Healy v. Johnson, 127 Iowa 221

Healy v. Johnson

127 Iowa 221 | Iowa | 1905

WeaveR, J.

Tbe plaintiff, a child of seven years, in company with other children, was- playing upon one of the public streets of the city of Lansing, Allamakee county, Iowa. He was run over and very severely injured by a horse and wagon owned by the defendant. On the claim that the accident was chargeable to the negligence of the defendant, this action was begun. The evidence tended to show that defendant was the proprietor of a retail grocery in Lansing, and in connection with said business kept and used the horse and wagon above mentioned for the delivery of goods to customers about town. On the day in question the delivery outfit was by the defendant intrusted to the charge of an employe for the purpose of delivering goods in the neighborhood where the children were at play. The employe left the horse standing in the street untied and unsecured while he carried the goods from the wagon into the house of a customer, and while thus engaged the horse ran away, and over the plaintiff, as above stated. Of the errors relied upon for reversal of the judgment for defendant we need mention only the following:

*2231. Negligence: violation of ordinance. *222I. After pleading the facts above stated, the plaintiff, by amendment to his petition, alleged that at the time of the accident there was an existing ordinance of the city of Lansing prohibiting the leaving of any horse or horses in any *223street or alley of tbe city without being tied or secured. By further amendment it was pleaded that there -was also another ordinance of the said city ,. ° prohibiting the riding or driving of a horse on a public street or highway at a speed greater than six miles per hour. A motion by. defendant to strike these amendments was sustained, and error is assigned thereon. The grounds assigned for striking the first amendment were that the allegations are immaterial and irrelevant; that there is “ no showing that the ordinance was at the time a valid and existing ordinance of the city of Lansing; that it appears from the pleading, as amended, that the act of leaving the horse untied was the act of another person, and not of the defendant; and that the ordinance is invalid because the subject is not expressed in the title.” In our judgment, none of these objections were well taken, and the striking out of the entire amendment was error. It was certainly material and relevant to show that the act alleged to be negligent was in violation of law. Such acts are negligent per se, and if plaintiff was able to prove the existence of the ordinance forbidding the leaving of the horse unattended and unsecured in the street, and that defendant, or his employe intrusted with the custody of the horse, did, in violation of such ordinance, leave it unsecured in the street, and the horse being thus left ran away and injured the plaintiff without fault on his part, then the defendant was liable, and plaintiff was entitled to recovery. See Correll v. R. R., 38 Iowa, 120; Ives v. Welden, 114 Iowa, 476, and Burke v. Creamery Package Co., 126 Iowa, 730.

2. Ordinances: title. The caption or title of the ordinance as stated in the pleadings: “ An ordinance relating to obstructions of or injury to streets, alleys and sidewalks ” can well be paraphrased as “ An ordinance regulating the use of streets, alleys and sidewalks,” and we think that to prohibit the leaving of horses in such public ways without' being properly secured comes fairly within the *224scope of that expression. Moreover, a horse and wagon left-alone and unhitched in the' street constitutes an “ obstruction ” within the ordinary meaning of that word.

3. Negligence of Servant: liability of master. The other suggestion - that the allegation is insufficient, because it appears that the act of leaving the horse unhitched was that of the employe, and not of the defendant - is clearly without merit. If the employe was by defendant directed or permitted to use the horse in making delivery of goods, then his negligence in the care or use of the horse while so employed was chargeable to the defendant. The responsibility of the master to third persons for the negligence of his servant with reference to matters within the scope of the employment is too elementary to require citation of authorities. The motion to strike the first amendment should have been overruled. As to the second amendment, we may say it does not appear to be claimed that the injury to plaintiff was occasioned by the fast riding or driving of the defendant or of his employe, and there was no error in the ruling striking out the allegation.

4. Evidence: negligence. II. The plaintiff offered to prove by several witnesses that the street where plaintiff was injured was much frequented by children, and that defendant’s employé in charge °f the horse on the day of the accident knew Q£ fac£. qr^g ^es^mony was excluded. 'While we should not be inclined to reverse upon this ruling alone, we think the testimony was not without a legitimate bearing upon the issue of negligence, and it should have been admitted.

5. Same A witness in behalf of the defendant was' permitted to testify that he saw the horse running away, and soon after went to the place where the animal had been left by its driver, and saw in the gutter a few bees - “a half a dozen anyway - evidently attracted by some substance issuing from the mouth of a drain. The apparent purpose of this testimony was to allow the jury *225to infer tbe possibility tbat tbe bees bad attacked tbe horse, and thus occasioned tbe runaway. In our judgment, tbe inference was entirely too remote, and, even if correct, it could have no tendency to justify or excuse, tbe act of defendant’s employe in leaving tbe borse without being properly secured. Tbe objection to tbis testimony should have been sustained. Lynch v. Nurdin, 1 Q. B. 29, and Bridge v. Goodman, 5 C. & P. 190, are cases which pass upon tbe liability of a person leaving bis borse and vehicle unhitched in tbe street. In tbe first case tbe borse was set in motion by tbe interference of a child, and in tbe last case by a stranger, who struck it a blow in passing. In both instances tbe defendant was held liable notwithstanding tbe intervening act of other persons. He who leaves a borse unsecured in a public street must be presumed to contemplate tbe possibility of its being frightened or interfered with, and it affords him no excuse to say tbat, if some one else bad not started the animal, or if it bad not been stung by a vicious bee, no injury would have resulted from bis negligence.

Moreover, if the' leaving of tbe borse unhitched was tbe violation of a city ordinance, the fact, if it be a fact, tbat tbe animal was ordinarily gentle and reliable, would be no excuse for tbe act, nor serve to release tbe defendant from liability.

6. Negligence of servant: liability of master. Tbe defendant was also permitted to show tbat be provided a bitching strap and weight by which to secure tbe borse when left in tbe street, and instructed tbe employe who attended to the delivery of goods to use it. , w immaterial, and had tbe tendency to suggest to the jury tbat, if tbe defendant bad provided tbe proper means for fastening tbe borse when left in tbe street, and bad given bis employe proper directions in respect to it, be bad done bis full duty, and was not liabll for tbe employe’s negligence. Tbis, as we have said, was not tbe law. So far as bis personal conduct is concerned, be may have done all tbat prudence and care would suggest; *226but when be placed tbe borse and wagon in control of bis servant, and sent bim out to deliver g-oods, tbe servant’s negligence in tbe performance of that duty was bis negligence, and be cannot sbow bis own personal care and prudence in defense to a claim for damages occasioned by sucb negligence on tbe servant’s part.

III. Plaintiff asked tbe court to instruct tbe jury, in effect, that tbe failure of tbe employe to obey tbe defendant’s orders to tie tbe borse wben left in tbe street would not be a defense, and that, notwithstanding sucb failure of tbe employe to .obey orders, tbe defendant would be liable for bis negligence in that respect. Tbis instruction was refused, and nothing equivalent thereto was given. Tbe instruction substantially embodied tbe law upon that proposition, and tbe jury should have been so directed. Lewis v. Schultz, 98 Iowa, 341; Powell v. Deveney, 3 Cush. 300 (50 Am. Dec. 738). Tbe doctrine of respondeat superior is not limited to tbe acts of tbe servant done with tbe express or implied authority of tbe master, but extends to all acts of the servant done in discharge of tbe business intrusted to him, even though done in. violation of bis instructions. See authorities collected in vol. 20, Am. & Eng. Enc. of Law (2d Ed.) 167.

Many other exceptions have been argued, but enough have been examined to indicate that a new trial must be awarded, and we think it unnecessary to prolong tbe discussion. For the reasons stated, tbe judgment appealed from is Reversed.