118 Iowa 417 | Iowa | 1902
About the 19th day of November, 1899, a cellar was being excavated in a lot belonging to the American Cereal Company. The material taken therefrom, consisting of dirt and rock, was hauled about three blocks distant across the Cedar river, and dumped between it and First street of Cedar Rapids. The street was paved with brick a width of about thirty feet between the curbings. A crossing of dirt over the curbing was made near its intersection with F avenue, another to the south about half way tó E avenue, and, another used at B avenue, where there was no curbing. Stone and earth dropped from the loads in going over the crossings and in coming back; also, in driving along the street, stone which had caught on the hounds and reaches of the wagons fell off. The evidence tended to show that rocks were thus scattered the entire distance from F to E avenue from the curbing out some twenty feet to the east, though thickest near the curbing. About twenty-five teams were engaged in the work, and hauled an average of fifteen loads a day each. The deceased was riding a bicycle home from his v/ork shortly after 12 o’clock, along First street, when the front wheel struck a small stone about the size of a goose egg, throwing his feet from the pedals, and, before he could regain control, swerved, and ran against a larger stone, when he was thrown so that he fell upon his back, and never regained consciousness.
VI. This is not a suit against the city, nor based on any negligence necessarily attributable to it. The charge is that defendants, through their employes, left rock in the street, in violation of an ordinance, and, as a result, deceased, without his fault, was thrown from his bicycle and injured. In violating the terms of the ordinance, the defendants, if they so did, were negligent, and, if this was the proximate cause of Overhouser’s death,-we know of no reason for denying liability. — Reversed. .