Perry v. Clarke County, 120 Iowa 96

Perry v. Clarke County

120 Iowa 96

| Iowa | 1903

Weaker, J.

On the 22d of October, 1900, the plaintiff was moving a traction engine along a public highway in Clarke County, and, while crossing a county bridge upon the line of his travel, said structure gave way, precipitating the plaintiff and engine into the gorge below. In the fall the plaintiff was pinioned beneath some portion of the engine, from which position he was not rescued for several hours, resulting in very severe physical injuries, and much pain and suffering, for which he seeks to recover damages. He alleges that the bridge was old, decayed, weakened, and unsafe for public use, of which condition the county had notice, but failed to use reasonable diligence to remedy the defect, and that by reason of such negligence the accident occurred, without contributory negligence on his part. The defendant denies the plaintiff’s claim, and further alleges that the injury to plaintiff occurred more than three months prior to the commencement of this suit, and that no written notice specifying the time, place, and circumstances of the accident was served upon the defendant within sixty days from the date thereof as provided by law. . It also avers that plaintiff, by his negligence, contributed to the injury of which he complains.

The evidence was such the jury would be justified in finding that the bridge had been built about the year 1884, with some repairs in 1895; that its parts were weakened by natural decay; and that plaintiff, being in the service of one Zink, the owner of a steam threshing outfit, approached the bridge with the engine from the east on the morning of the day of the accident. Before attempting *98to cross, the engine was stopped, and plaintiff and Zink went forward to examine the bridge. They concluded that the floor was too badly worn to be safe. At this time a member of the defendant’s board of supervisors happened to arrive, and, on being asked, responded that he “thought the bridge safe, as it had just been repaired.” He proposed, however, to furnish some new plank if Zink would lay them; and, this proposition being accepted, the most of the day was consumed in obtaining the material and making this repair. Some examination was also made of the stringers. ■ When the new plank were laid, plaintiff and Zink, having four sound plank, such as the statute provides shall be used in moving an engine across a bridge, laid them lengthwise upon the west end or bent of the bridge, properly gauged to carry the wheels of the engine, and for the rest of the distance used for this purpose the old plank taken from the bridge, and laid double. Plaintiff then mounted the engine, and moved slowly upon the bridge. • He passed safely over until upon the west or last bent, and was on the new plank, when the supporting stringers gave way. There is evidence on the part of defendant tending to show that the engine wheels did not follow the extra plank laid for their accommodation, thus subjecting the bridge' to a greater strain than would otherwise have been produced; but this was a matter of dispute in the testimony, which was properly submitted to the jury. It appeared, or at least there was some evidence, that the stringers gave way at the west end, where they lay upon the sill, and were more or less covered and obscured by the earth approach; one witness' saying that “the joists at the west end, where they rested on the cap, were almost rotted in two,” but that, owing to the dirt, this condition would not be noticed by looking at them from the outside.

I. The first point made by the appellant is that at the time of the accident the wheels of the .engine were *99not upon the running boards, as required by the statute 1. use 9f piank: evidence. which permits the use of public bridges by traction engines. Code, section 1571. If the fact relied upon by the appellant were conceded or shown without dispute, the conclusion for which it contends could not well be avoided; but, as we have already said, while there was evidence in support of defendant’s claim in this respect, there was other evidence, both direct and circumstantial, to justify the opposite conclusion. The question as thus presented was guarded by an appropriate instruction, and properly submitted to the jury.

II.Error is assigned upon the ruling of the court in excluding certain testimony. One of defendant’s witnesses was asked: “Now, Mr. Stalker, tell the jury whether or 2. Evidence: conclusion witness. not there was a crossing — a way they might have gone either above or below the bridge without any trouble?” An objection to this as immaterial and'incompetent was sustained: the trial judge suggesting that, to render such proof admissible, the fact should have been pleaded. Without deciding whether the reason assigned for the ruling is or is not sound, we think there was no error in excluding the answer to this and other questions of like import. The inquiry does not ask simply as to the existence of another route between the same points, or for its description, but further calls for the opinion of the witness whether it was one the plaintiff “could have used without any trouble.” If the fact of the existence of another route was competent at all, it was for the jury, and not the witness, to say whether it was such a one as the plaintiff could have used without unreasonable trouble or delay. Moreover, there was no offer to prove that such other «way was a public way, or was pointed out or was known to the plaintiff or to his employer.

III.It is said the plaintiff is shown to have been guilty of negligence, because, as is alleged, he knew the *100unsafe condition of the bridge. It is true, he examined 3. contribu-_ geuce. and assisted in replanning it before attempting to cross. This fact, instead of showing-negligence, as a matter of law, tends to sustain his claim that he was exercising prudence and care. It may be admitted, of course, that'' if the defective or rotten condition of the bridge was so plain to casual observation that such examination as he gave it ought to have revealed the defect, and to have warned him against risking the passage, then he was negligent, and should not recover, but whether such condition did exist was for the jury to determine. It is further urged that he was negligent in riding the engine across the bridge. It appeared from the testimony of some of the witnesses that an engineer may dismount from his engine and send it across abridge alone, but there was no such showing as would render it proper for the court to say that a failure to pursue such course was negligence. Indeed, to the uninitiated, it would seem that to send an engine across a bridge alone, expecting it to guide itself along the running boards which the statute requires to be used, would be taking chances savoring of rashness. We are clear that there was no error in permitting the jury to say whether the conduct of plaintiff in this respect was that of a reasonably prudent engineer.

IV. The question of notice to the county of the condition of the bridge was also one of fact. The bridge was made of pine lumber and plank, and had been built 4. defective of notlceTailt negligence. aI>out sixteen years at the time of the accident, though it had been repaired and in some parf¡ rebuilt in 1895. It is a matter of common knowledge that such materials, when exposed to the weather, and especially where they come in contact with the moist earth, decay with considerable rapidity; and the law charges the party having a a public bridge of that kind in its care with the duty not only of making the structure reasonably safe originally, but also with the *101duty of reasonable inspection of the same from time to time as it advances in age and presumable deterioration. If a bridge stands for such a length of time that the natural processes of deqay have weakened it to the point of danger, and the exercise of reasonable care in oversight and inspection would have revealed such condition to the proper officers, the county cannot rely upon the want of notice as excusing it from the charge of negligence. It is held to have notice of whatever defects which reasonable diligence in the discharge of its duties would have brought to its attention. Huff & Buck v. Poweshiek Co., 60 Iowa, 529; Padelford v. Eagle Grove, 117 Iowa, 616. This is, in effect, the rule applied by the trial court, and we think it right, both upon principle and authority.

Y. It will be observed that the accident occurred upon October 22d, and suit was brought January 30th thereafter — a period of more than three months. Under 5. noticj, of injury: sufflci-ency of. our statute, three months’ delay in bringing suit will bar the action, “unless written notice specifying the time, place and circumstances of the injury shall have been served upon the county within sixty days from the happening of the injury.” Code, section 3447. It is denied that such notice was served. It is shown,however, without controversy, that on December 17, 1900, and within less than sixty days from the happening of the accident, a written claim or petition was filed with the county auditor, and directed to the board of supervisors of Clarke county, in the following words:

“Osceola, Iowa, December 17, 1900.

“To Board of Supervisors of Clarke County, in Account with F. E. Perry, Dr.: To personal injuries caused by defective bridge, about one-fourth mile West of J. W. Miller's home, in Ward Township, Clarke county, Iowa.

“Your petitioner further states that on the 22nd day of October, 1900, while crossing said bridge with a threshing machine engine, that said bridge gave way, and that *102he was carried to the bottom of the creek with said engine, landing on his legs, and other parts of his person, causing permanent injury.

“Therefore, I ask that said county pay me for said injury the sum of fifteen ($15,000) thousand dolíais.

“I swear that, to the best of my knowledge and belief, the above account is just and true and wholly unpaid, except some expenses unknown to this agent.

“[Signed] C. E. Thompson, Agent.

“Subscribed and sworn to before me December 17,1900.

“[Signed] Edgar Bell, Auditor.”

We see no good reason for saying this paper does not fill the demand of the statute for a written notice. It is not entirely formal, perhaps, but the substance is there. It gives notice of the accident, and of the time, place, and circumstances, in reasonably specific terms, and was received and filed in time by the officer upon whom notice could properly be served. To hold that this is not a substantial compliance with the statutory requirement would be excessively technical, and serve no just purpose. The fact -that the paper is called a “petition,” instead of “notice,” is immaterial. It is the effect of its contents, and not its name, by which we are to be governed in its application. Neither is it material that the paper is verified by the affidavit of an agent. The statute does not require the notice to be sworn to, and, if verification is necessary, there is no reason why it may not be made by any person knowing the facts.

We find no reversible error in the record, and the judgment below is aeeieMed.