161 Iowa 296 | Iowa | 1913
About forty years ago, Jones county constructed an iron bridge near Monticello, over Maquoketa river. It was eleven or twelve feet above water and about six feet higher than the surface of the banks. It rested on stone abutments on either end, and at the south retaining walls extended from the abutment sixteen- feet on one side and twenty feet on the other holding the earth of the approach. The rise from the level of the road to the bridge was gradual, and a cement apron at the edge carried vehicles on the bridge without a jar. The iron girder on each side of the bridge
The horse was old, blind, and gentle, and was being driven in the direction of the bridge when plaintiff fainted. It would likely continue in the same direction upon loss of consciousness by plaintiff, of which it would not be informed, and likely walked on until it fell from the bridge or approach to the ice. TIow else did it get there ? But would this have happened had the road been supplied with barriers? This and other courts have found little difficulty in sustaining findings that suitable barriers in like situations would turn a horse or team when beyond control because'of fright. How then can it be said that these, if provided the bridge and approach, would not likely have turned this gentle twenty-year old slowly moving blind horse ? Surely the evidence was such as to carry this issue to the jury.
The question has generally turned on whether the fright of a horse or a defect in the highway is the proximate cause, where the horse because of such fright has escaped the control of the driver and it or those in the vehicle have been injured on account of such defect. As noted in the Manderschid case, however, it is immaterial whether what may be termed the primary cause is the breaking of the carriage or harness or the fright and running away of the horse or some other mishap, if without the fault of the party complaining. Thus in Hunt v. Town of Pownal, 9 Vt. 411, the nut which had been secured on the inner end of the bolt connecting the left arm of the tongue to the forward axletree came off. The wheels thereupon turned out at right angles with the road, toward the river and the wagon with all its contents was precipitated down the bank. Under these facts, the court held:
If the road be out of repair, and the injury happened by reason of such want of repair, and the plaintiff or his agents are guilty of no want of care and prudence, the defendants are liable. ... If there be no fault on the part of the plaintiff, which common sagacity and forecast could have anticipated and provided against, and the loss be the combined result of accident and the insufficiency of the road, the plaintiff may recover.
In Baldwin v. Greenwood Turnpike Co., 40 Conn. 238 (16 Am. Rep. 33), the iron band attached to the end of one of the shafts to the axletree broke, and the shaft, with the crossbar, fell upon the horse’s heel, and the horse escaped the control of the driver and ran off defendant’s bridge. The court held the defendant liable, saying:
The failure of a traveler to be continually present with his team up to the time and place of the injury, when that failure proceeds from some cause entirely beyond his control,*302 and not from any negligence on Ms part, ought not to impose upon Mm the loss from such injury, particularly when the direct cause of the same is the negligence of some other party; the loss should be charged upon the party guilty of the first and only negligence with reference to the matter. In our judgment, the proper rule is this: If the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the negligence of the defendants,' combined with some accidental cause, to which the plaintiff has not negligently contributed, the defendants are liable.
In Ring v. City of Cohoes, 77 N. Y. 83 (33 Am. Rep. 577), the rule deduced from the authorities is thus formulated:
When two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate — the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible — the municipality is liable, provided the injury would not have been sustained but for some defect. This appears to us to be the reasonable rule. It exacts no duty from municipalities which has not always rested upon them. They must use proper care and vigilance to keep their streets and highways in a reasonably safe and convenient condition for travel. This is an absolute duty which they owe to all travelers; and when the duty is not discharged, and in consequence thereof a traveler is injured, without any fault on his part, they incur liability. They are not bound to furnish roads upon which it will be' safe for horses to run away, but they are bound to furnish reasonably safe roads; and if they do not, and a traveler is injured by culpable defects in the road, it is no defense that his ¡horse was at the time running away or was beyond his control.
The rule obtaining in cases to the contrary is thus stated in Mandersehid v. City of Dubuque, supra:
The defendant is guilty of negligence; the plaintiff could not exercise care; because of these facts uniting, plaintiff sustains loss; therefore defendant is not liable. Or, in other terms, as follows: The defendant negligently permits a pit in the highway; it was impossible for plaintiff to use care to keep his horse out of it; therefore defendant is not liable.
In Gould v. Shermer, 101 Iowa, 582, the rule is laid down that, if some other cause operates with the negligence of the defendant to produce the injuries complained of, this will not relieve him from liability, if his wrong concurring with some other cause was the proximate cause of the injury. In some of the eases, the accident occasioning the escape of the horse is referred to as merely incidental, while the negligence of the municipality in not properly maintaining the highway is denominated the dominating, controlling cause. Indeed, the proximate cause is often said to be the dominating, controlling one and not such as is merely incidental.
Yoders v. Amwell Township, 172 Pa. 447 (33 Atl. 1017, 51 Am. St. Rep. 750). There, one "Watson took two girls in his carriage to a church sociable. The night was dark, and on their return, when on a bridge, one of the girls dropped her hat from the buggy. Watson drove over the bridge, and stopped about fourteen feet from the north end, giving the reins to the other sister, and got out and picked up the hat. In some way, the horse took fright and backed off the side of the bridge, which had no barriers. The court, in holding that the plaintiff (one of the girls) was entitled to recover, said':
The dominant cause here was a bridge negligently dangerous to the ordinary horse at all times, when he dis-" played one of his common characteristics. True, his fright was ' n incident without which the dominating cause could not have operated to produce the injury; but the same may be said of most of the incidents connected with the trip on the highway that evening. If plaintiff had not dropped her hat, if Watson had not stopped to get it, and so, running back to the originating cause, going to the ‘sociable’ behind a horse instead of on foot; all were in a certain sense causes of the injury, without which the accident would not have happened, but occurring in the ordinary, lawful use of the highway. The law regards them as but incidents, and still*304 holds the neglect of duty as the dominating or proximate cause.
As said, it is quite immaterial how the horse escaped control of the driver providing this was without fault of the plaintiff. He was making the ordinary and lawful use of the highway. He was quite as free from fault in losing control because of his unconsciousness, as he would have been had the horse taken fright and escaped his control. While the highway is primarily for travelers and vehicles under control, yet the defendant must be held to anticipate that horses may get beyond control of their drivers because of fright, accident, or mishap, and the plaintiff was no more in fault, nor he and his horse any less entitled to protection, because he lost control through a faint, than had this occurred owing to some accident to his vehicle or the frightening of the animal. His condition did not relieve the county of the duty of providing a reasonably safe bridge to pass over, and, if it did not furnish this and the injury was caused by such failure without his fault, he is entitled to recover. The jury, as they might have done under the evidence, found plaintiff without fault and that the defendant was negligent in the respects alleged, and we think it was open to them to say that' the proximate cause of the injury was such negligence.
This was unnecessary, as the statute did not require the •plaintiff to point out wherein the county was at fault or the causes of the injury save as these may have appeared from the circumstances related. It is said in the notice that the road and approach were narrow, and it is so alleged in the amendment, and, even though plaintiff did state the cause of the injury, this did not preclude the allegation of another in his petition or amendment. Not being required to mention the respects in which the county may have been negligent, it was not entitled to rely for these on the notice, and therefore there could be no estoppel from setting up other causes or • grounds of negligence in the action when begun. There was no error in not striking the amendment to the petition.
V. The point that the narrowness of the bridge should not have been submitted to the_ jury as a cause of the injury was not assigned as error nor mentioned in the propositions and authorities in the brief. For this reason, it is not considered. As, appellant says, the bridge was conceded to have been of statutory width, the submission of the issue doubtless was without prejudice. The criticisms of the instructions otherwise are of excerpts therefrom and are entirely dissipated by considering them as a whole. Other exceptions require no attention. — Affirmed.