Bixby v. City of Sioux City
| Decision Date | 20 October 1917 |
| Docket Number | 31527 |
| Parties | ROSE BIXBY, Administratrix, Appellant, v. CITY OF SIOUX CITY, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED JULY 1, 1918.
Appeal from Woodbury District Court.--J. W. ANDERSON, Judge.
ACTION at law to recover damages for the death of the plaintiff's intestate. After trial to a jury and verdict for plaintiff, the court sustained the defendant's motion to set aside the verdict, and entered judgment for the defendant, notwithstanding the finding of the jury.--Affirmed in part; reversed in part.
Affirmed in part; reversed in part.
C. R Metcalfe and T. F. Bevington, for appellant.
Griffin & Page, and Arthur J. Wissmath, for appellee.
South Division Street, in West Morning-side Addition to Sioux City, extends north and south. Its northern terminus is another street, extending east and west along the brow of a precipitous hill. At the time of the accident complained of, a fence or barrier of some sort had been erected on the brow of the hill, at the place where South Division Street turns upon the east and west street. On the night of September 24, 1914, the deceased, Elwood R. Bixby, accompanied by others, was driving an automobile north on South Division Street, and, failing to make the turn safely at the place mentioned, his car struck the fence, broke through it and fell over the bluff. In the fall, Bixby received injuries from which he died, October 4, 1914, and the car was more or less wrecked and broken. On August 12, 1915, this action was begun, on the theory that the injuries sustained, as above mentioned, had been occasioned by the negligence of the city in failing to mark or give warning of the danger at said place by red lights or other suitable signal, and in failing to guard against accidents of this nature by maintaining a proper fence barrier or guard, and in permitting the place to become hidden or obscured by a growth of weeds. The petition is drawn in two counts. The first count, after pleading the alleged facts of the injury, asks a recovery for medical attendance and hospital services in the care of the deceased, and for damages to the automobile which the deceased was driving when the accident occurred. These items were separately stated, the claim for damages to the car being itemized at $ 100. In the second count, damages were claimed in the sum of $ 25,000, for the benefit of the estate and family of the deceased, and for $ 300 for the expenses of his burial. No written notice was served on the city of the time, place, or circumstances of the injury, until August 5, 1915, nearly 11 months after the accident. The defendant demurred to the petition generally, on the ground that the pleaded facts showed that the plaintiff's right of action was barred by the statute of limitations. The demurrer was overruled, and thereupon an answer was filed, denying the allegations of the petition and alleging that the cause of action was barred by the failure of the intestate and of plaintiff to serve the statutory notice within 60 days after the injury, or to bring action within 3 months after said date. At the conclusion of all the evidence, defendant moved for a directed verdict in its favor on each of the two counts of the petition, on the grounds: First, that it conclusively appeared from the evidence that deceased was himself negligent; and second, that the cause of action was conclusively shown to be barred by the statute. The motion was denied, and the cause submitted to the jury. In due time, defendant objected to the charge of the court, because of its failure to instruct the jury that the cause of action was barred. In stating the issues to the jury, the court omitted any mention of the plea of the statute, and gave no instruction in reference thereto. The jury returned a verdict for plaintiff for $ 300 upon the first count of the petition, and for $ 4,220 on the second count; and judgment thereon was entered, the same day.
Defendant filed a motion for new trial, assigning numerous grounds therefor. Among the errors assigned was the failure of the court to instruct the jury that the alleged cause of action, except as to the item for injury to the car, was barred by the statute. Later, the court permitted the defendant to amend its motion by moving for a judgment for the defendant, notwithstanding the verdict, on the grounds: First, that it was conclusively shown that plaintiff's right of action upon each and every item of her claim (except the item for injury to the car) was barred by the statute; and second, that not only was there no evidence of negligence on the part of defendant, but it conclusively appeared that the accident was caused by the negligence of the deceased. The motion was sustained, the judgment and verdict were set aside, and final judgment entered, dismissing the action at the cost of plaintiff.
I. The appellant assigns error upon the order of the court permitting defendant to amend its motion to set aside the judgment and verdict and to move for judgment notwithstanding the verdict. It is sufficient to say in this respect that such permission does not seem to have been opposed or objected to, nor was exception preserved thereto. It is a settled rule of practice that objections of this nature raised for the first time in this court cannot be considered.
II. As the motion was sustained generally, the record does not disclose whether the trial court so ruled on the ground that the action was clearly barred by the statute, or on the other ground assigned, that deceased was charge able with contributory negligence as a matter of law; but, in the absence of any specification in the order, it may be sustained if we find either ground to be well taken.
The statute, Code Section 3447, is a familiar one:
Counsel for appellant seeks to take his case from the scope of this statute by pointing out that the notice is required where the cause of action is founded on injury to the person, and argues that it has no application when the damages sought are for the death of the person. This distinction has been drawn by the courts of several states. But in such cases are found distinct statutes, specifically providing for the recovery of damages for wrongful death at the suit of the administrator estate, or family dependents; and this provision is held not to be subject to the requirement of other statutes, making it necessary to serve notice of an injury to the person. Such holding is quite clearly right under the statutes which they undertake to construe. McKeigue v. City of Janesville, 68 Wis. 50 (31 N.W. 298); Laconte v. City of Kenosha, 149 Wis. 343 (135 N.W. 843); Nesbit v. City of Topeka, 87 Kan. 394, 124 P. 166 (124 P. 166, 40 L. R. A. [N. S.] 749); Perkins v. Oxford, 66 Me. 545. We are required, however, to look to our own statutes. Strangely enough, while it is a conceded proposition that, at common law, actions of this character are not maintainable, we have not now upon our statute books any provision directly and distinctly creating any such right of action. Such provision did once exist in the Revision of 1860, Section 4111, and Code of 1851, Section 2501. It was not carried forward into the Code of 1873 nor into our present Code. It has been held, however, that such actions are inferentially allowed by the Code provisions found in Code Sections 3313, 3343, and 3445. Conners v. Burlington, C. R. & N. R. Co., 71 Iowa 490, 32 N.W. 465. However, nothing is found in these sections which serves to classify or distinguish such actions from other actions "founded on injury to the person," so far as they are affected by the statute of limitations, Code Section 3447. Subdivisions 1 and 3 of this section provide different limitation periods...
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