85 Iowa 492 | Iowa | 1892
In October, 1888, the plaintiff' engaged, at a livery stable in "West Liberty, a team and driver to take herself and sister from that place to the home of their brother, several miles in the country. The driver furnished was a boy sixteen years of age, and the vehicle was a carriage which contained but one seat. That was occupied by the two sisters and the driver, the plaintiff sitting on the left side. Elm street extends northward, from the vicinity of the depot in West Liberty, parallel to and about twenty rods east of the railway of the defendant, a distance of three-fourths
I. At the time of the accident the town of West Liberty was incorporated, and the north boundary line
This is not a suit or prosecution for any fine, penalty, or forfeiture authorized by the ordinance; hence
It is said it will be presumed that the officers of the town discharged-their duty by making publication of the ordinance as required by law. It will be presumed, where publication in a newspaper is shown, that the newspaper was one of general circulation, and when the ordinance is sufficiently certified that it was duly recorded. Town of Bayard v. Baker, 76 Iowa, 222. It will also be presumed that -a record of the council in regard to the passage of the ordinance is correct. Town of Eldora v. Burlingame, 62 Iowa, 35. And no doubt there are other facts of a preliminary or incidental nature, and essential to final action, which will be presumed when such action is shown; but the statute under consideration does not authorize such a presumption. It provides that proof that the required publication has not been made shall be a sufficient defense to any suit or prosecution for a fine, penalty, or forfeiture. It cannot be said, however, that such a defense would not avail in any other case, for the reason that the statute also provides that by-laws and ordinances requiring publication shall take effect and be in force at the expiration of five days after they have been published; and it necessarily follows that they would not take effect
II. The part of the ordinance'which limits the rate of speed was contained in an amendment which was
III. A further objection to the ordinance made by the defendant is that it is unreasonable. The crossing
IV. The jury was instructed that, if the driver was guilty of negligence which contributed to the injuries
V. The appellant complains of the eighth paragraph of the charge on the ground that it relieved the plaintiff of the burden of showing herself free from contributory negligence. But the sixth paragraph of the charge instructed the jury as to the obligation upon the plaintiff in that respect, and the charge, as an entirety, was not misleading.