61 Iowa 684 | Iowa | 1883
— We understand the undisputed facts to be, that plaintiff and one Yotaw left Iowa City in the evening with a horse and buggy, and reached the place where the accident occured about three o’clock at night, it being then quite dark. The bridge proper over the creek is about sixty feet long. There was at the time of the accident a steep earth embankment at each end, enabling travelers to pass over the bridge, but there were one or more fords over the creek, which were used to some extent instead of the bridge. North of the bridge, and about ninety feet distant, was a trestle work sixty feet in length and eight or ten feet high. The space between the bridge and trestle work, and at the opposite approach to the latter, was intended to be filled with embankments of earth. This had not been done, and no one could for that reason pass from the bridge over the trestle work. The county made a contract with certain parties to construct the approach to the trestle work, and also to fill the sjDace between it and the bridge, so that travel could pass over both.
The contractors, at the time of the accident, in the performance of this work had to an extent constructed the approach to the north end of the trestle work, but had done nothing between it and the bridge. The plaintiff and Yotaw passed from the travelled road on to such approach, and passed along
There was evidence tending to show that the earth embankment, over which plaintiff traveled a portion of the way in the buggy, and walked the residue, was rough, uneven, and showed that the earth had recently been disturbed. The evidence also tended to show that the trestle work was from eight to eighteeen inches higher than the embankment, and it is insisted that the plaintiff must have diseoverd these facts, and, therefore, if he had acted as an ordinarily careful and prudent man would have done, he would have proceeded cautiously, and, had he done so, the accident would not have occurred. The evidence was conflicting as to whether the trestle work was higher than the embankment. As we un
The ground of negligence stated in the petition was the failure to erect barriers. This was the material question in the case, for, if the county was not negligent in the particular named, then plaintiff was not entitled to recover, no matter how negligent the county may have been in other respects. The court instructed the jury, in substance, that if the work was done under a contract, and was not in any way controlled by the county, and was not used as a public highway, and did not interfere with the reasonably free and unobstructed use of the highway, and the injury was caused by the negligence of the contractor alone, then the plaintiff could not recover; but if, according to the plans, the embankment was intended to form a Communication with the trestle work on both the north and south ends, and the north fill was made first, which, when connected with the trestle work, made it
The necessity for barricades did not exist until the earthwork was so far completed that travelers could pass from it to the trestle work. The county contracted for the construction of the embankment, leaving it discretionary with the contractor to commence where he did. If the earthwork was in such a state of completion that travelers could pass with reasonable safety therefrom to the trestle work, (and this was a question for the jury,) then we- think the failure to erect barriers was negligence, for which the county is liable. The contractor had no control ovor the trestle work, and it is exceedingly doubtful whether he had authority to erect a barrier thereon, but conceding that he had, we think the question whether or not' the work was dangerous was jrroperly submitted to the jury. The simple construction of the embankment can hardly be said to have been a dangerous work. But we think the county was bound to know that it might become so if the contractor proceeded as he did. The embankment was apparently, or at least, the jury were authorized to so find that it was, a continuation of the traveled highway, and, when connected with the trestle work, the whole formed an approach to the bridge. Any one passing along the trestle work in the night time was liable to fall therefrom, as the ]3laintilf did. In effect, there was an excavation at the south end of the trestle work, which made the work the county contracted to have constructed, as the samewus done, dangerous to travelers in the night time, who might be passing along the highway. In fact, we are-at a loss to know how the embankments could have been constructed and not been dangerous, unless both embankments were constructed at the same time. This would have been unuusal, and the county, in the absence of provisions in the contract to that effect, had no right to anticipate that it would have been so done. The rule we understand to be that, “where work is contracted to be done which
III. It is, however, said that the county is not liable because the earthwork and trestle had never been used for public travel. But it was being constructed for that purpose, and there must always be some person who first piasses over a newly constructed or repaired highway. Unfortunately, the plaintiff was such person, and, as we have said, the jury were authorized to find that he was rightfully passing over both the earth and trestle work.
IY. It is said that several of the special findings of the jury are clearly against the evidence. This may be conceded, for, upon examining said findings, we find that they, under the issue, present immaterial questions. Besides, no sufficient error is assigned under which the point as to the special findings can be considered. It is further said that the verdict is against the evidence, and the damages are excessive. We cannot interfere with the verdict on either of these grounds. Upon some material questions there was a conflict in the evidence. It cannot be fairly said that the preponderance as to any of them was greatly in favor of the defendant. We think the jury were warranted in finding as they did.
Aebtomed.