186 Iowa 408 | Iowa | 1918
Plaintiffs are the administrators of -the estate of Hugh R. Owens, deceased, who was killed about 5 o’clock on the morning of September 15, 1914, when an automobile, driven by him, ran into Hilton Creek, on a public highway, about 2% miles southeast of Marengo, at a point where a bridge had been washed out, a few days before. The former bridge was about 65 feet in length, and was reached from the east over a slightly elevated approach. About 10 days prior to the accident, a temporary bridge, about 66 feet in length, had been constructed in the highway immediately north of the former bridge, at a much lower elevation than the former bridge, and it was reached from 'the east by travelers turning to the right at a point about 66 feet east of the east end thereof. Deceased was alone at the time of the accident, but two witnesses testified to seeing the car in the immediate vicinity of, and closely approaching, the point of the accident. The car, when it reached the opening in the highway, turned a complete somersault, and lay in the bottom of the chasm upside down, with the radiator pointing east.
The negligence charged in plaintiff’s petition was the failure of defendants to provide suitable and necessary warning to travelers upon the"higkway of the dangerous conditions resulting from the destruction of the former bridge. The principal defense urged is the alleged contributory negligence of deceased. The particular facts upon which defendants rely to establish same will be hereafter referred to.
That it was the duty of defendant to maintain its bridges in a reasonably safe condition for travel is not disputed by counsel for appellee: but it is claimed that, about 10 days prior to the accident, defendant constructed a temporary bridge across the creek, together with a suitable roadway leading from a point about 66 feet east of the east side of the former biidge thereto, and that same had been traveled for 10 days; that a beaten track was formed, and plainly visible to travelers upon the highway in the exercise of reasonable care; that a barricade, consisting of a 2x12 plank about 20 feet in length, to which was attached .two upright pieces elevating the north end of the plank so that same was visible to travelers approaching from the east, extended across the highway at the time of the accident, or at least was so placed the night before, and, if down, it was 'without the fault of defendants, and without notice to its officers. The evidence is without conflict that a barricade such as is described above was found lying across the highway after the accident, and that the left wheels of the automobile had passed over the north end thereof. The evidence as to whether the barricade was in
pi wa& the duty of deceased, in the exercise of reasonable care, to have his car equipped with brakes in such condition that he could, by the use thereof, aid in stopping or controlling the speed of the car. Evidence of its condition following the accident may have tended to throw light upon its condition
“When the intention to be proved is important only as qualifying an act, its connection with that act must be .shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as Ms own testimony that he then had that intention would be. After his death, there can hardly be any other way of proving it.”
To the same effect, see 3 Wigmore on Evidence, Section 1714; Mathews v. Great Northern R. Co., 81 Minn. 363 (84 N. W. 101); Viles v. City of Waltham, 157 Mass. 542 (32 N. E. 901); Bigelow v. Bear, 64 Kan. 887 (68 Pac. 73); Baker v. Kelly, 41 Miss. 696; Applegate v. M’Clung’s Heirs, 3 A. K. Marsh (Ky.) 1151; Darby v. Rice, 1-2 Nott & M. (S. C.) 732; Sherman v. Sherman, 75 Iowa 136; Nolte v. Chicago, R. I. & P. R. Co., 165 Iowa 721.
The declaration made by deceased to his wife tended to negative the inference which counsel for defendant seeks to draw from the other conversation: that deceased was, in fact, driving his automobile at a high rate of speed, for the purpose of catching a train. There was no other way
Other alleged rulings on the admission of evidence need not be separately considered, as they are not likely to arise upon a retrial of this case.
The portion of the statute relating to injuries to the property, life, or limb of another is not applicable to this case, and, in so far as the instruction related thereto, it was erroneous; but we are inclined to hold that the giving
We are unable to find wherein Scott v. O’Leary, supra, conflicts with the conclusion reached herein, or in Kendall v. City of Des Moines, supra. The instruction approved in that case was not like the one under consideration, and we find nothing in the language of the court in any way tending to sustain the instruction complained of herein. The instruction was erroneous and necessarily prejudicial.
As the driver of the automobile approached a point about 115 feet east of the east abutment of the former bridge, the road bore slightly toward the southeast, and then turned to the northwest. This tended to throw the rays from the lamps of the automobile somewhat away from the changed course of travel, which, combined with the decline in the new highway toward the bridge, and the grade of the original highway above the same, tended, to some extent, at least, to conceal the changed course of travel. It is quite clear that, had the barrier been in position to give warning to deceased, he would, in the exercise of ordinary care, doubtless have observed the same; but the jury may well have found from the evidence that no barrier was up across the highway, and that deceased had no warning of the changed course thereof. There was some evidence that a fog was hanging low over the creek bottom. This would, of course, further tend to conceal the changed course in the highway from deceased. It was proper for the jury to take into consideration the time when the accident occurred, the condition of the weather and of the road, the barrier, if any therein, the speed of the automobile, and ail other facts and circumstances surrounding the transaction, in determining whether deceased was, at the time, in the exercise of reasonable care, or whether he was guilty of negligence contributing to his death; but we cannot say, as a matter of law, that deceased was guilty of contributory negligence, and this question was properly left to the decision of the jury.
Many other alleged errors in rulings upon the admission of evidence, and in the instructions given, are not like