186 Iowa 949 | Iowa | 1919
¡This action was brought to recover the value of a bull, that came to its death through falling into a sewer ditch in the process of construction in the city of Denison.
On the 14th day of December, 1914, the plaintiff was driving the bull, with certain females of his kind, from a point-somewhere east of Denison to a point in Denison, to be delivered at the Northwestern Railroad Stockyards, located in the southwestern portion of the city. The plaintiff started with these cattle early in the morning, from his home three or four miles east of Denison, and entered the streets of Denison somewhere about 11 o’clock on that day. On entering the city, he passed onto what is known as Railroad Avenue. This street runs east and west, and the plaintiff was proceeding westward along the street, at the time* of the accident. The cows were brought simply as companions to the bull, so that, by their presence, he might be induced to conduct himself in a more genteel manner than could reasonably be expected -of him if brought in alone. Accompanying these animals were plaintiff, riding in a
It appears that, before reaching the city, the bull frequently became unruly, escaped from the control of his drivers, and ran from the road into pastures and fields and over fences, pursued by the riders, who, after some considerable effort, drove him back into the road. It appears that he was making vigorous efforts to return to his home. The drivers wanted him to go one way, and he wanted to go the other. By reason of this, the cows were somewhat in the lead, when they reached the city. The testimony tends to show, however; that, after they had succeeded in turning him back into the road, he gave up his efforts to return home, and proceeded gently and kindly to where the cows were. They were then about three blocks from where the accident occurred. The defendant was putting in a sewer in this-avenue. The work had progressed somewhat, and some excavations had been made-and filled, but some excavations were left unfilled. Defendants stopped work on the excavation on the 11th, and did not start again until the 16th. It was between these two dates that the plaintiff, with his cattle, came upon this street. The defendants had barriers partially across the street, about two feet east of the unfilled portion of the ditch. The barrier consisted of a board laid upon tiles, one tile on each side, with a board resting on the top of each. The bull, at the time he was injured, had passed beyond this guard, and was on one side of the open ditch. The cows were on the other side. He attempted to cross over to where the cows were, slipped, and lost his balance, and was thrown into the ditch. This excavation in the street was near the center of the street. On each side of the ditch, a passageway was left for travelers. Only the ends .of the ditch were guarded. There were no guards on the side of the ditch, except such as had been
The plaintiff charges as negligence that the ditch ivas carelessly and negligently left open and unfilled, without proper barrier or guards to warn and protect the traveling-public. against its dangerous character and'condition.
Upon the fact of negligence, the defendants joined issue with the plaintiff, -and the cause ivas tried to a jury, and a verdict returned for the plaintiff for $110. Upon this verdict, judgment was entered, and the defendants appeal, assigning error prejudicial to their rights occurring upon the trial. We will not consider these 'errors in the order of their assignment, nor will we subdivide them as presented by appellants in argument.
The first error relied upon for reversal is predicated upon the refusal of the court to sustain defendants’ motion for a directed verdict, made at the close of the evidence. This motion, though subdivided into seventeen parts, really presents for consideration but three questions:
(1) That the evidence does not affirmatively show any negligence on the part of the defendant.
(3) That the plaintiff was guilty of contributory negligence, in that said bull ivas allowed to come upon the streets of the city without being properly restrained by the plaintiff ; that, prior to plaintiff’s arrival upon the streets, he discovered the unmanageable character of the bull and that the bull was beyond his control; and that he was, therefore, negligent in permitting him to come upon the streets uncontrolled and unrestrained, with notice and knowledge of the danger so exposed.
Upon this, we have to say that there is some conflict in the evidence touching the character of the bull arid the manner of its handling. The evidence tended to show that, after the bull got upon the street and was headed westward on the street, and just before and at the time of the accident, he was proceeding leisurely along the street, in a quiet and orderly manner. It may possibly seem that this sudden change of disposition in the bull at this particular time, this sudden change in his demeanor, were not such as one would reasonably expect in an excited bull, driven under the lash for three or four miles; yet the jury could, if they believed the testimony of plaintiff’s witnesses, And that, at the time of the accident, and immediately prior to the accident, he had submitted himself to the control and management of his drivers, and was proceeding in the direction they desired him to go. There is some dispute in the testimony as to this bull’s conduct, as he came down Railroad Avenue to the point where the accident occurred. It seems to tax the credulity of defendants to believe that he could then be in a perfectly composed frame of mind. We feel justified in saying that, as an original proposition, we might differ with the jury in its finding that he had surrendered
The next proposition is that the negligence charged is not shown to be the proximate cause of the injury.
Third, Was the plaintiff guilty of contributory negligence?
“Swine, sheep and goats at all times, "■ . and, during the time and as required by a > to n . police regulation adopted according to law, stock shall be restrained from running at large. Animals thus prohibited from running at large, when trespassing on land, or a road adjoining thereto, may be distrained by the owner of such land, and held for damages done by them, and for the costs provided in this s chapter; but stock shall not be considered as running at large so long as it is upon unimproved lands and under the immediate care and efficient control of the owner, or upon the public roads for travel or driving thereon under like care and control.”
This animal was upon a public street; was being driven upon a public street. It was a question of fact whether it was under the immediate care and efficient control of the owner. The jury could well find from this record that it was under the efficient,care and control of the owner. It certainly was under the care of the owner. The efficient control required is that which reasonably prudent and careful men exercise under like circumstances, under like conditions, and in respect to the same matter. There are degrees of efficiency. What might be efficient under one condition might not be efficient under another. It was for the jury to say, under the record here, whether or not this bull was, at the time of the injury, or immediately prior thereto, under the efficient control of its owner. The court submit-, ted this question with proper instructions and with proper limitations, and we find no grounds for reversal here.
It is next contended that-the court should have submitted special interrogatories to the jury.
It is next contended that the court should have granted a new trial on the ground of newly discovered evidence.
Upon reviewing the instructions asked by the defendants, we find that, in so far as they express correct rules of law, they were given by > the court in its instructions sub
It is claimed that reversal should be had on the fact that the plaintiff claimed something for removing the bull from the ditch; that he removed it on the direction of the defendants, and incurred expense. The error is predicated on the thought that there is no evidence to support this claim-; but we find that the record shows to the contrary, and we do not, therefore, give it any further consideration.
There are other matters complained of, which we do not deem of sufficient importance to require consideration.
On the whole record, we think there is no error of which defendants can complain. The cause was correctly submitted to the jury, and the verdict of'the jury is binding on the defendants, and the judgment was rightly entered. The cause is, therefore, — Affinnod.