167 Iowa 500 | Iowa | 1914
This action was brought by Margaret Herd-man, as plaintiff in her lifetime. She died pending the action, and her husband was substituted as her administrator. The decedent was severely injured in a runaway while riding with her husband in a buggy drawn by her husband’s horse. The claim is that the horse was frightened by the defendant’s automobile. The facts are not greatly in dispute.
The accident occurred on the night of July 6, 1912, at about 10 o’clock at night. The defendant was driving north on Seventh street, Des Moines. While driving along the east side of the street, he observed a standing automobile. In turning to the left to pass such automobile, his lights disclosed plaintiff’s horse and buggy in front of him going north. The defendant was at that time quite close to the buggy, and, as he claims, he could only pass it safely on the right side. He passed either between it and the automobile or between it and the east curb. His fender grazed the buggy and frightened the horse. The horse started to run, turning to the left, but was stopped within a very short distance. The incident attracted the attention of a n.umber of persons, who at once came upon the scene. An examination was had of the buggy to ascertain the damage, if any. The injury to the buggy was very
The claim for the plaintiff is that the defendant was negligent in passing the decedent’s buggy in the way in which he did, and that, as a result of such negligence, the horse was greatly frightened, and that such fright continued down to the time that he ran away. It was also pleaded by the plaintiff that the fright of the horse was caused the second time by the starting of defendant’s automobile when he left for his home. But there was no evidence of any negligent conduct on the part of defendant at that time, and that charge of negligence does not seem to have been pressed at the trial, and was not submitted to the jury.
It is contended for the defendant that he was not guilty of any negligence in the first instance, and that his act of colliding with the buggy did not result in any injury to the decedent, and that such act on his part was not the proximate cause of the injury which resulted later to the plaintiff.
Vehicles moving slowly shall keep as close as possible to the curb on the right, allowing more swiftly moving vehicles free passage at their left.
And upon section 1569 of Code, as follows:
Turning to the Right. Persons on horseback or vehicles meeting each other on the public roads shall give one-half of the same, turning to the right. A failure in this regard shall make the delinquent liable for all damages resulting therefrom, together with a fine not exceeding five dollars.
It is urged that the trial court erred because it did not instruct the jury that the defendant was guilty of negligence, as a matter of law, because of the alleged violation of such ordinance and statute. The rule has been long settled in this state that, where the participant in an accident is upon the wrong side of the street or highway, his presence there is prima facie evidence of negligence, and no more. Riepe v. Elting, 89 Iowa, 82; Cook v. Fogarty, 103 Iowa, 504; Carpenter v. Campbell Automobile Co., 159 Iowa, 52; Hubbard v. Bartholomew, 163 Iowa, 58.
Neither the ordinance nor the statute purports to lay down a hard and fast rule of the road, to be followed under all circumstances. Circumstances may confront a person, and often do, when due care would require him to avoid or relinquish the side of the street to which he was otherwise entitled. In such case, he would be required to exercise such due care, and, if he failed to do so, he would be liable for negligence, even though he had planted himself upon the side of the street to which he would ordinarily be entitled. In all cases, therefore, the ultimate question is: What was required by due care, under all the circumstances confronting the actor at the time ?
The effect of the statute and the ordinance is to lay the burden of justification upon the man who was on the wrong
That is, so far as lay within her power, she was required to exercise the same care as any ordinarily prudent person would be required to exercise under like circumstances.
Special objection is urged to the expression “so far as lay within her power.” It is urged that this laid the duty of extraordinary care upon the decedent. We think that a careful reading of the clause will not bear this interpretation. This clause expressly says that she was required to exercise the same care as any ordinarily prudent person. The particular clause objected to implies a possible excuse for a lower standard of care. Its implication is, perhaps, that, if the decedent was under any disability or limitation of body or intellect, it would excuse her from the measure of care required from an ordinary person. There was perhaps no occasion for the qualification, but its tendency was favorable rather than prejudicial to the appellant. If the instruction had required her to exercise all the care that “lay within her power, ’ ’ a different question would be presented. This is the question argued.
III. The twelfth instruction given by the court dealt with the subject of proximate cause. It is conceded to be correct, except as to one paragraph, which was as follows:
If, however, you find that, after such collision, the horse was again under control, and that some other, independent,
If you find that defendant was negligent as alleged, and as a result of such negligence the horse became frightened, and such fright of the horse continued down to the time of the runaway to such an extent that without such fright the runaway would not have occurred, and in whole or in part because of such fright the horse ran away and threw Margaret Herdman from the buggy, and injured her, the mere fact, if it be a fact, that some other cause, or the act, negligent or otherwise, of some other person, operated in conjunction with the negligence of the defendant to increase the fright of the horse, and to produce such runaway and injury, would not in itself excuse the defendant from liability.
We think the instruction is not amenable to the criticism made upon it, and that it is applicable to the evidence. If the mere nervousness and fright of the horse after he had stopped and was under control was to continue as a proximate cause for future accidents which might result from such fright and nervousness, then the defendant would he held liable for all such accidents occurring, whether on the same night or on the following day or the following week. If the horse had been held only in temporary control, and by reason of his fright had broken away from such control, a different question would be presented. This is not such a case.
The evidence was undisputed that the horse did not break
IV. Complaint is laid against part of instruction 14. It was as follows:
The evidence shows, without controversy, that after the collision the horse was stopped and under control for a sufficient length of time for Margaret Herdman to have alighted from the buggy, had she elected to do so. If, therefore, you find from the evidence that Margaret Herdman knew and appreciated the dangers incident to the trip home with said horse and buggy, or if, in the exercise of ordinary care, she should have known and appreciated such danger, and disregarding the same she elected to pursue her journey in such manner, you will be justified in finding that she assumed the risk; and in that event the plaintiff cannot recover.
Appellant also complains of the first paragraph above quoted from this instruction. It is urged that the court ought not to have stated that the fact recited therein was “without controversy.” We think the instruction is in accord with the evidence at this point. We can find no conflict in the evidence to the effect that the horse was under control and remained under control until the occupants of the buggy of their own volition resumed their journey. Plaintiff’s own testimony as a witness is consistent with this instruction.
Assuming that the defendant was at fault in causing the collision, the decedent had escaped injury therefrom. For the time being, at least, the danger was over. After a considerable investigation, the defendant left for his home. The decedent and her husband remained. It rested with them to judge whether their horse was sufficiently recovered from his fright to justify the continuance of their journey. The husband alighted from .the buggy; the decedent did not. The husband returned to the buggy, and they proceeded on their way.
The relation of the defendant to the accident that happened later was not materially different from what it would have been if the decedent had not been in the buggy when the collision occurred, but with knowledge of the facts had en
The verdict was for the defendant. The jury necessarily found, therefore, either that the defendant was not guilty of wrongful conduct in causing the collision, or that the collision was not the proximate cause of decedent’s injury, or that the decedent was guilty of contributory negligence. The evidence was clearly sufficient to sustain the verdict on any one of these grounds.
On the question of proximate cause, there was evidence that the horse was frightened a-second time by another passing automobile.
A number of errors are assigned and argued that bear upon the measure of damages. In the state of the record, we have no need to consider these.
By the undisputed evidence the decedent was seriously injured, and would have been entitled to substantial damages, if the defendant had been liable at all.
We find no prejudicial error in the record, and the judgment is therefore — Affirmed.