Nisbet v. Town of Garner

• Decision Date: 03 October 1888
• Citation: 39 N.W. 516,75 Iowa 314
• Parties: NISBET v. TOWN OF GARNER.
• Court: Iowa Supreme Court

75 Iowa 314

39 N.W. 516

NISBET

v.TOWN OF GARNER.

Supreme Court of Iowa.

October 3, 1888.

Appeal from district court, Hancock county; 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 appealed.J. F. Thompson, C. H. Kelley, and L. S. Butler, for appellant.

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

REED, J.

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 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.

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 against the town for the injury thus received.” The principal question in the case is as to the correctness of this instruction. That cases may arise in which the contributory negligence of another will be imputed to the one injured, and defeat his right of recovery for the injury, is certainly true, and that doctrine has been applied by this court. In Payne v. Railway Co., 39 Iowa, 523, it was held that all right of action in plaintiff's favor, for the injury he had sustained, was defeated by the gross negligence of the driver of the vehicle in which he was riding. In Yahn v. Ottumwa, 60 Iowa, 429, 15 N. W. Rep. 257, it was held that the negligence of the plaintiff's husband, with whom she was riding at the time, contributing to the injury, would be imputed to her, and would defeat a recovery. But neither of those cases sustain the doctrine of the instruction. In the first case, the plaintiff and three others were riding together. The wagon and team belonged to one not a member of the party. It was under the control of one of the party, but at the time of the accident was being ing driven by another. The holding in the case is not based upon the idea that the relation of principal and agent existed between the plaintiff and the person who was driving the team at the time, but rests upon the fact that the parties were engaged in a common enterprise or purpose, in which each, to some extent, was responsible for the acts and conduct of the others. In the other case the evidence tended to show that the injury was occasioned by the act of the husband in driving upon an obstruction which was in plain view. The doctrine that his negligence is imputed to her does not rest upon any supposed agency of the husband, but upon the relation of the parties. Under such circumstances, the wife is under the care of the husband. Her situation is very different from that of the friend or guest who, upon his invitation, rides with him for pleasure or convenience, but to whom he owes no special duty. In Slater v. Railway Co., 71 Iowa, 209, 32 N. W. Rep. 264, the plaintiff, who was an infant of tender years, received the injury complained of when riding with his mother and natural guardian. The district court instructed that, if the mother had negligently exposed him to the danger, there could be no recovery. The correctness of that ruling was not controverted in this court upon the original submission; and we reversed the judgment against the defendant upon the ground that, under it and the undisputed testimony, the verdict should have been the other way. A petition for rehearing was afterwards filed, in which, and in an oral argument in support of it, the doctrine of the instruction was combated with great learning and ability. But we felt ourselves constrained to overrule the petition without considering the question as to the correctness of the instruction, on the...