123 Iowa 149 | Iowa | 1904
In ruling upon a demurrer to one division of defendant’s answer, and also in instructing the jury, the court held that if plaintiff was assisting in moving the traction engine over the defendant’s bridge, and so doing without the use of plank sjich as are exacted by the statute, he could not recover. Appellant excepted to this construction of the law on two grounds: (1) For that plaintiff was not
It is to be noted that the use of highways, including bridges, culverts, and street crossings, by engines is not prohibited. The right to' travel by such a vehicle, recognized in Yordy v. Marshall County, 80 Iowa, 405, is continued unimpaired, save as affected by the regulations prescribed. But these relate solely to the operation or management of the engine when on the road: (1) The whistle is not to be blown; (2) those in charge are to stop one hundred yards from persons with horses or other stock, or farther if the animals appear to be frightened; (3) a competent person is to be kept one hundred yards ahead to assist in emergency and to prevent accidents; and (4) planks of certain dimensions are to be placed and kept continuously under the wheels when crossing a bridge, culvert, or street crossing. The duty of stop
But the section of the Code quoted does not purport to deny the use of the road to any one. As said in State v. Kowolski, 96 Iowa, 352, “The law fixes-the conditions on which these engines may be propelled on the highways: Even though another way may be, in practice, just as good, still it is not a conformity with law, and will not invoke its protection.” The statute regulates but does not’ prohibit the use of the highway for the transportation of engines, and undoubtedly the object had by the Legislature in its enactment was, as contended by appellee, the protection of life and property. So it may be said of the law requiring teams to take the right side in passing, or of ordinances prohibiting
The mere concurrence of the illegal act of the plaintiff with the accident in point of time ought not to be treated as the concurrent cause of the accident, as seems to have been done in the cases first cited, but rather as a condition or incident merely. Thus, where two persons were racing contrary to law, and one of them injured the other, it was held the injured party could recover, because his own illegal act did not contribute to the injury. Welch v. Wesson, 6 Gray, 505; Broschart v. Tuttle, 59 Conn.