De Camp v. Sioux City

• Decision Date: 11 May 1888
• Citation: 74 Iowa 392,37 N.W. 971
• Parties: DE CAMP v. SIOUX CITY.
• Court: Iowa Supreme Court

74 Iowa 392

37 N.W. 971

DE CAMP

v.SIOUX CITY.

Supreme Court of Iowa.

May 11, 1888.

Appeal from district court, Woodbury county; GEORGE W. WAKEFIELD, Judge.

This is an action to recover damages for a personal injury sustained by the plaintiff by reason of an alleged defect in one of the streets of Sioux City. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.A. C. Strong and J. H. & C. M. Swan, for appellant.

ROTHROCK, J., ( after stating the facts as above.)

There is but little controversy as to the material facts in the case. The plaintiff is an express-man. He used an express wagon and one horse in carrying on his business. On the 19th of September, 1885, he was driving along Fourth street, in said city, his horse going in a walk. He was met in the street by a butcher's wagon, in which there were two men. The wagons collided, by reason of which the plaintiff was violently thrown out upon the ground, his wagon upset, his wagon-bed fell on top of him, his horse ran away, and there was a general smash-up of his wagon. The injury to the plaintiff was not, however, occasioned by the running of his horse, but by the collision with the butcher's wagon. One of the men in the butcher's wagon, who was a witness for the plaintiff, testified that said wagon was driven, at the time of the accident, at the rate of 10 to 15 miles an hour. All of the other witnesses who testified on this point concur in the statement that said wagon was driven very fast. A witness for plaintiff, who saw the whole occurrence, stated that the team was going at the rate of 15 miles an hour, and did not check speed until they were stopped by the collision. Another witness stated that the team was traveling “at a great rate,” and “terrible fast.” There was a city ordinance in force at the time of the accident prohibiting the driving of any vehicle in any street of the city faster than at the rate of six miles an hour, or driving “in such manner as to come in collision with or strike any other person or object.” The plaintiff claims that the city is liable for his injuries because it permitted the street-car tracks which were in the street to become out of repair to such an extent that the iron rails were so much above the surface of the street that, as the vehicles approached each other, the plaintiff and the driver of the butcher's wagon could not turn out so as to avoid the collision, because they could not pull the wheels of the wagons over the rails, although they endeavored to do so; that the wheels of the wagons slid along the rails, and thus caused the collision. The defendant requested the court to give to the jury the following, among other,...