39 N.W. 516 (Iowa 1888), Nisbet v. Town of Garner

Citation:39 N.W. 516, 75 Iowa 314
Opinion Judge:REED, J. I
Party Name:NESBIT v. THE TOWN OF GARNER
Attorney:J. F. Thompson, C. H. Kelly and L. S. Butler, for appellant. Bush & Wichman and W. E. Bradford, for appellee.
Case Date:October 03, 1888
Court:Supreme Court of Iowa
 
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Page 516

39 N.W. 516 (Iowa 1888)

75 Iowa 314

NESBIT

v.

THE TOWN OF GARNER

Supreme Court of Iowa, Des Moines

October 3, 1888

Decided October, 1888

Appeal from Hancock District Court.--HON. JOHN B. CLELAND, Judge.

ACTION for the recovery of damages for a personal injury caused, as was alleged, by a defect in a public highway which defendant was bound to maintain. Verdict and judgment for defendant. Plaintiff appeals.

REVERSED.

J. F. Thompson, C. H. Kelly and L. S. Butler, for appellant.

Bush & Wichman and W. E. Bradford, for appellee.

OPINION

[75 Iowa 315] REED, J. I.

Plaintiff, when riding on one of the streets of the defendant town, was thrown from the vehicle in which he was riding, and sustained serious injuries. The accident happened at a plank crossing, constructed and

Page 517

maintained by the town, at the intersection of two streets. The negligence alleged is that the crossing was built above the level of the street, and that it was not so filled in on the sides as to form a proper and safe approach. The evidence tended to prove that the earth, which had originally formed the slopes from the level of the street to the top of the crossing, had been worn away on one side, and that the accident was caused by the dropping of the front wheels of the vehicle into this depression. Plaintiff resided in the country, and on the day of the injury he was invited by one of his neighbors to accompany him to the town. They were accompanied by William Sheridan, who had been in the employ of the neighbor, but his term of service had expired the day before. The vehicle in which they rode, and the team by which it was drawn, belonged to the neighbor. Some time after they arrived in town, plaintiff and Sheridan went to a shop for the purpose of procuring some shovels belonging to a brother of the owner of the team and wagon, which he had requested them to carry to the country for him, and it was when they were driving from the shop to another part of the town that the accident occurred. Sheridan was driving the team at the time, and plaintiff testified that he neither gave any direction as to the manner of driving, nor assumed any control over the team or its movements.

[75 Iowa 316] The district court gave the following instruction: "The law is that the driver of a private conveyance is the agent or servant of the person riding in such conveyance, and if such person, while riding along a public highway or street, is injured, in consequence of obstructions or defects negligently permitted to remain in the street or highway, and the driver is guilty of a want of ordinary care and caution, and his negligence materially contributes to such injury, then the persons injured cannot recover as...

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