164 Iowa 377 | Iowa | 1914
The course of Lafayette street in Waterloo, Iowa, is from northwest to southeast. It is crossed at right angles by Fourth street. About one hundred feet south of
The errors assigned are quite numerous and we shall attempt consideration only of such as counsel have thought of sufficient importance to make the subject of argument, and in so doing shall follow as near as practicable the order of their presentation in the brief.
It has been held, and upon unimpeachable grounds, that a man’s education, training, skill, and capacity to earn money is a proper subject of consideration in estimating damages for his physical injury or death even though he is not in actual employment at the time of his death, or even if he has retired therefrom with no present intention of resuming it. Simonson v. R. R. Co., 49 Iowa, 90. In other words there is value in a man’s power or capacity to earn money. Railroad Company v. Ward (Ky.), 44 S. W. 1112. His natural and acquired power, skill and capacity to earn money, are in a very proper sense his capital. Its value may be lessened, but is not necessarily wholly eliminated because not employed. The same is true of a woman, except so far as it may be affected by her marriage. Marriage, as we have seen, does not take away her right to pursue an independent occupation. If she suspends or abandons such occupation, and devotes her energies to domestic duties alone, then, except for the effect of a recent statute, loss of time and loss of power and capacity to perform such domestic service would afford her no ground for the recovery of damages; the right of action resting in her husband alone. It happens, however, that chapter 163 of the Laws of the Thirty-fourth General Assembly, which went into effect very shortly before the accident in this case, grants to a married woman the right, among other things, to recover for her loss of time resulting from any injury caused by the negligence or wrongful act of another. Whether this is to be construed as authorizing recovery by her for the loss of earning power in the performance of domestic duties we need not now determine, for, taking the law as it stood prior to this enactment, we think the contention of defendant is not sustainable. When a married woman, after years of employment in an independent occupation, lays it aside for domestic duties even though she has no present intention of returning thereto, there is no presumption of law that she will never resume such
It follows that there was no error in overruling the defendant’s objection to testimony, or the denial of the requested instruction based on the theory that such evidence was wholly inadmissible.
As the points made against the validity of the ordinance are most vital, we give them first attention. Code, section 681, relating to the enactment of ordinances by municipal corporations, provides that “no ordinance shall contain more than one subject, which shall be clearly expressed in its title,” and it is against this rule which it is claimed that this ordinance offends because it attempts, not only the regulation of vehicles in use or left standing upon the streets, but also provides how drivers of teams or other vehicles shall be required to drive; how- they shall turn into an intersecting street or avenue; how they shall cross from one side of the street to the other side, and how and where vehicles left standing in the street shall be placed; and that another section of the same enactment deals with obstructions in the streets. Little if any more than the reading of this enumeration of
But it is urged that even if the ordinance is not vulnerable to the objection that it embodies two or more distinct subjects of legislation, it still offends against the requirement that its subject shall be clearly expressed in the title. The particular point there made is that the words, “An ordinance governing and regulating traffic on the streets,” do not have any clear or direct reference to the control or regulation of moving vehicles. It is said that “traffic” has relation alone to buying and selling, and the use of the streets as market places and other matters of kindred nature, and that to extend the phrase to include the use of streets as public ways for the driving of' vehicles and the transportation of freight and passengers is not justified by the “approved usage of the language.” Code, section 48, subd. 2. That “traffic” in its general sense does include buying and selling and exchange of goods, wares, and merchandise is not to be denied, but, like other words, its precise meaning in any given instance depends largely upon the connection in which it is employed. To the mind of one versed in the use of the English language a reference to “street traffic” or “traffic upon the streets”
But it is further objected that the question in this case" embodied the thought of a level street, when it appears that the truck was going down a sharp incline. As we read the testimony the street had no marked grade or incline longitudinally. Measuring at right angles from the middle line of the street in the direction of the alley, there was a slight descent, amounting at a point halfway to the curb to only six one-hundredths of a foot, but from this point the .slope was accentuated, reaching sixty-three one-hundredths of a foot at the gutter. It thus appears the only incline of any serious moment was within the last twelve and one-half feet of the curb. The driver says that his truck measured eight feet between the rear and front axles, and that the tongue extended thirteen feet beyond the front axle. The length of the outfit from the end of the tongue to the rear of the bed was twenty-four feet, five inches. There was evidence tending to show that the truck was driven along the street railway track astride the left-hand rail until the driver turned to swing into the alley. Now as the automobile must have occupied at least four to six feet next to the curb, and as it was the projecting end of the tongue which did the damage, it follows of necessity that at the time of the collision the rear end of the truck had not yet left the car track, and its movement could not have been materially affected by the slope or incline toward the gutter. Hence we think the question put to the witness was not objectionable as being based upon a
In none of our cases are the conditions ordinarily necessary to justify an imputation of a driver’s negligence to his passenger or companion more succinctly or concretely stated than in Larkin v. Ry. Co., 85 Iowa, 504. In that case the plaintiff engaged at a livery stable a team and driver to take hér to the home of a friend in the country. In attempting to cross a railway track which intersected their route of travel, they were struck by a passing train, and plaintiff received an injury. In an action against the railway company to recover damages the defendant sought to impute to plaintiff the alleged negligence of the driver. Upon this contention the court charged the jury that the driver’s negligence would prevent a recovery only in case it was found that he was under the control and direction of plaintiff, or in case she had the right to control or direct him, and the rule of law thus stated was approved by this court. Of the facts in the case the court said that plaintiff had no knowledge of the proper route to her place of destination; that such matter “was left to the determination of the liveryman and his driver. She gave the driver no directions as to the course to take, and assumed no control over him.” As there was a dispute in that
It is said that the ride being taken could be considered a common or joint enterprise within the law because the trip was being taken as the result of an arrangement or agreement between Loomer and plaintiff and another friend the evening before the accident, and all were riding together for the common pleasure to be so found. The extent of this arrangement seems to have been that plaintiff, a nonresident of the city, was visiting a friend in Waterloo, and on Sunday evening Loomer and his wife called upon them. Before leaving Loomer said in substance that if they would like he would be pleased to take them out and let them see how the town had grown since their previous visit. The invitation was accepted, and it was arranged that he would call for them on the following morning, as he in fact did. This in our judgment has no tendency to show a joint undertaking or enterprise in which either party assumes, or is charged with, any responsibility or liability for the negligence of the other. It is no answer to say that both driver and his guest were out for the pleasure or recreation to be derived from the ride. If A. accepts the invitation of B. to walk with him to church, or to the postoffioe, or as a matter of mere recreation, and while so engaged A. is injured by the negligence of C. to which B.’s want of care in some manner contributes, counsel would not think of insisting that B.’s negligence should be imputed to A., and thereby release C. from liability for his tort. If not, then in what manner is their relation changed if, instead of inviting him to walk, A. politely invites B. to get into his carriage and ride to church, or to the postoffice, or for an hour’s diversion?
It is somewhat difficult to state a comprehensive definition of what constitutes a joint enterprise as applied to this class of cases, but it is perhaps sufficiently accurate for
There was no evidence upon which the jury could have properly found plaintiff chargeable with the negligence of Loomer, and there was no error in refusing to direct a verdict for defendant on that ground, or in refusing to submit the question to the jury.
Still others of the requests for instructions state mere abstract legal propositions without any suggestion or direction to the jury for their proper application to the ease in hand, and there was no error in refusing them.
Concerning the error assigned upon the court’s refusal to charge the jury that no consideration should be given the plaintiff’s profession as a music teacher, we have already sufficiently indicated our views. It ought to be said perhaps that, while refusing the instruction asked, the court in charging the jury seems in effect to have excluded that feature
A painstaking examination of the record reveals no prejudicial error, and the judgment below is — Affirmed.