Borland v. Lenz, No. 34401.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtDE GRAFF
Citation194 N.W. 215,196 Iowa 1148
PartiesBORLAND v. LENZ.
Docket NumberNo. 34401.
Decision Date22 June 1923

196 Iowa 1148
194 N.W. 215

BORLAND
v.
LENZ.

No. 34401.

Supreme Court of Iowa.

June 22, 1923.


Appeal from District Court, Fayette County; W. J. Springer, Judge.

Action at law to recover damages for personal injury. Trial to jury. Verdict and judgment for plaintiff, and defendant appeals. Reversed.

Weaver, J., and Preston, C. J., dissenting.

[194 N.W. 215]

E. H. Estey and James D. Cooney, both of West Union, for appellant.

E. R. O'Brien, of Oelwein, and E. H. McCoy, of Waterloo, for appellee.


DE GRAFF, J.

Plaintiff, a child between 5 and 6 years of age, seeks to recover damages from the defendant based on personal injuries resulting from an automobile accident. The petition alleges negligence in certain particulars. The evidence fails to sustain the allegations.

[1] To predicate a liability, some proximate negligence on the part of the defendant must be pleaded and proved. This is a jural postulate. The defendant is not an insurer. The theory of personal liability in cases of this character involves the blameworthiness of the act. If this were not true, the essential element of negligence would be entirely eliminated, and the theory of absolute accountability substituted. As said by Nelson, C. J., in Harvey v. Dunlop, Hill & Den. Supp. (Lalor) 193:

“No case or principle can be found, or, if found, can be maintained, subjecting an individual to liability for an act done without fault on his part.”

This is an universal principle, and recognizes some degree of negligence as the foundation of legal responsibility. The same thought is emphasized by Shaw, C. J., in Brown v. Kendall, 6 Cush. (Mass.) 292. See, also, Morris v. Platt, 32 Conn. 75; Parrott v. Wells, 15 Wall. 524, 21 L. Ed. 206.

[194 N.W. 216]

[2] The facts of this case, which we will presently note, disclose what we may term an inevitable accident. Negligence cannot be predicated on a purely accidental occurrence. The doctrine of last clear chance is not involved. The plaintiff, immediately prior to the accident, was in a position of safety, and as a matter of law the defendant was not bound to anticipate that plaintiff would suddenly run at or into his car and thereby cause an injury to himself. Defendant was not bound “to anticipate or know the intentions or purposes” of the plaintiff. Bishard v. Engelbeck, 180 Iowa, 1132, 164 N. W. 203.

In Donahue v. Railway Co., 222 Mass. 233, 110 N. E. 281, a boy 10 years of age ran out into the street to pick up his hat, that had been blown there by the wind. In so doing he was struck by an oncoming street car running about 20 miles an hour. No gong or whistle was sounded. It is held that the motorman was under no duty--

“to anticipate that a boy of the plaintiff's age would rush suddenly and impetuously upon the track and in the face of an oncoming and plainly visible car.”

Another case similar on its facts involved a boy 8 years of age, who suddenly ran into the street in front of a motor truck. It was held that the court properly directed a verdict on behalf of the defendant and it is said:

“In these circumstances no one could reasonably foresee the sudden presence of the plaintiff's intestate in the path of the automobile, or prevent a collision with him.” Lovett v. Scott, 232 Mass. 541, 122 N. E. 646.

In Barger v. Bissell, 188 Mich. 366, 154 N. W. 107, a boy 7 years of age walked into the street and into the defendant's car. It is said:

“Drivers upon highways are not held as insurers against accidents arising from negligence of children or their parents, and though in law such negligence in a particular case may not be a defense, as contributory negligence, for a driver also guilty of negligence, the fact of an accident does not establish liability or raise a presumption that the driver is negligent.”

What are the pleaded issues in the instant case, and what items of negligence were submitted by the trial court to the jury? They are: (1) That the car was operated at a rate of speed in violation of law; (2) that the defendant knowing the dangerous position of the plaintiff continued to operate his car at an excessive rate of speed; (3) that the defendant failed to have his car under control; (4) that defendant failed to have his car under such control as to enable him to immediately stop in case of danger and peril to pedestrians.

It is elementary that only such questions as were properly pleaded by the plaintiff in his petition and sustained by proof should be submitted to the jury. The negligence pleaded and submitted are as herein indicated. But two witnesses testify to the accident. The testimony of the witness for the plaintiff does not raise a conflict as to the matters pleaded and submitted. A Mrs. Little was sitting near a front window, sewing, and stated she noticed the boys coming toward the intersection; that she saw the injured boy go out to the center of the street, heard the defendant blow his horn when he was about one-half block away, and saw the boy go back to the curb on the north side of the street. She didn't know whether the fender or wheel hit him.

“Except seeing the boy there, and seeing the car strike the boy, is about all I saw before the accident happened. I didn't notice where the car was, or where the boy was, and what I state is simply my judgment about it. I didn't notice the location of the car particularly before the accident. About the first thing that I noticed was the fact that, just immediately before the car struck the boy, the boy was running toward the car. I didn't know just what part of the car struck the boy. I had to look through the window there, and didn't know just what happened.”

Defendant was the only other witness to the accident. He testified:

“As I approached the east crossing--that is, the line of travel across the east side of the intersection--and when I got within 4 feet from that...

To continue reading

Request your trial
20 practice notes
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...Liability, therefore, must be predicated on proximate “negligence,” both “pleaded” and proved. Borland v. Lenz, 196 Iowa, 1148, 194 N. W. 215;Burris v. Titzell, 189 Iowa, 1322, 177 N. W. 557;179 N. W. 851; on the other hand, “res ipsa loquitur” is not a rule of “pleading,” but rather an inf......
  • Webster v. Luckow, No. 42532.
    • United States
    • United States State Supreme Court of Iowa
    • February 5, 1935
    ...anticipate such action on the part of the child. See Bishard v. Engelbeck, 180 Iowa, 1132, 164 N. W. 203;Borland v. Lenz, 196 Iowa, 1148, 194 N. W. 215;Brekke v. Rothermal, 196 Iowa, 1288, 196 N. W. 84;Faatz v. Sullivan, 199 Iowa, 875, 200 N. W. 321;Radenhausen v. C., R. I. & P. Ry. Co., 20......
  • Kallansrud v. Libbey, No. 46386.
    • United States
    • United States State Supreme Court of Iowa
    • April 4, 1944
    ...the verdict and cites various Iowa cases in support of his view, including Disher v. Kincaid, 193 Iowa 83, 186 N.W. 666;Borland v. Lenz, 196 Iowa 1148, 194 N.W. 215;Howk v. Anderson, 218 Iowa 358, 253 N.W. 32;McBride v. Stewart, 227 Iowa 1273, 290 N.W. 700;Chipokas v. Peterson, 219 Iowa 107......
  • Bratvold v. LaLum, No. 6566.
    • United States
    • North Dakota Supreme Court
    • November 29, 1938
    ...passed and that neither would step directly into a place of danger. Bishard v. Engelbeck, 180 Iowa 1132, 164 N.W. 203;Borland v. Lenz, 196 Iowa 1148, 194 N.W. 215;Faatz v. Sullivan, 199 Iowa 875, 200 N.W. 321;Klink v. Bany, 207 Iowa 1241, 224 N.W. 540, 65 A.L.R. 187;Shelley v. Waguespack, 1......
  • Request a trial to view additional results
20 cases
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...Liability, therefore, must be predicated on proximate “negligence,” both “pleaded” and proved. Borland v. Lenz, 196 Iowa, 1148, 194 N. W. 215;Burris v. Titzell, 189 Iowa, 1322, 177 N. W. 557;179 N. W. 851; on the other hand, “res ipsa loquitur” is not a rule of “pleading,” but rather an inf......
  • Webster v. Luckow, No. 42532.
    • United States
    • United States State Supreme Court of Iowa
    • February 5, 1935
    ...anticipate such action on the part of the child. See Bishard v. Engelbeck, 180 Iowa, 1132, 164 N. W. 203;Borland v. Lenz, 196 Iowa, 1148, 194 N. W. 215;Brekke v. Rothermal, 196 Iowa, 1288, 196 N. W. 84;Faatz v. Sullivan, 199 Iowa, 875, 200 N. W. 321;Radenhausen v. C., R. I. & P. Ry. Co., 20......
  • Kallansrud v. Libbey, No. 46386.
    • United States
    • United States State Supreme Court of Iowa
    • April 4, 1944
    ...the verdict and cites various Iowa cases in support of his view, including Disher v. Kincaid, 193 Iowa 83, 186 N.W. 666;Borland v. Lenz, 196 Iowa 1148, 194 N.W. 215;Howk v. Anderson, 218 Iowa 358, 253 N.W. 32;McBride v. Stewart, 227 Iowa 1273, 290 N.W. 700;Chipokas v. Peterson, 219 Iowa 107......
  • Bratvold v. LaLum, No. 6566.
    • United States
    • North Dakota Supreme Court
    • November 29, 1938
    ...passed and that neither would step directly into a place of danger. Bishard v. Engelbeck, 180 Iowa 1132, 164 N.W. 203;Borland v. Lenz, 196 Iowa 1148, 194 N.W. 215;Faatz v. Sullivan, 199 Iowa 875, 200 N.W. 321;Klink v. Bany, 207 Iowa 1241, 224 N.W. 540, 65 A.L.R. 187;Shelley v. Waguespack, 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT