Carlisle v. Sells-Floto Show Co.

• Decision Date: 25 June 1917
• Docket Number: No. 31198.,31198.
• Citation: 163 N.W. 380,180 Iowa 549
• Parties: CARLISLE v. SELLS-FLOTO SHOW CO.
• Court: Iowa Supreme Court

180 Iowa 549

163 N.W. 380

CARLISLE

v.SELLS-FLOTO SHOW CO.

No. 31198.

Supreme Court of Iowa.

June 25, 1917.

Appeal from District Court, Polk County; Wm. H. McHenry, Judge.

Action for damages to the estate of a child seven years old, killed by a team when frightened by the unloading of the paraphernalia of a circus and the accompanying menagerie into the street; resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals. Affirmed.E. C. Corry and Nesbitt & Johnston, all of Des Moines, for appellant.

Carr, Carr & Evans, of Des Moines, and John T. Bottom, of Denver, Colo., for appellee.

LADD, J.

The defendant is a corporation organized under the laws of Colorado, and engaged in the business of making circus and menagerie exhibitions in different cities of the country, traveling by railway. It entered the city of Des Moines May 17, 1906, having obtained a license from the city authorites to parade the streets and give an exhibition, and proceeded to unload from the train in Southeast Fifth street, where it crosses the tracks of the Chicago, Burlington & Quincy Railway Company, horses, wagons, light and heavy, tents and other accoutrements, elephants, camels, and animals in cages on wagons, some of them with canvas flapping. The wagons were run from the ends of the flat cars over plank to the ground, pulled into the street north of the tracks and backed on each side of the street. Animals were making the usual noises on being disturbed. A number of wagons were left south of the tracks on the west side of the street and the east side near the unloading were the spectators, among whom was Roscoe Carlisle, seven years of age, and who had left home at about 8:30 a. m. About this time one Ungles approached from the north, driving a team of horses attached to a bakery wagon, and when about 40 or 50 feet north of the tracks he was signaled to stop by the person superintending the unloading. After the wagon, being taken from the cars, was hauled to the north past Ungles' team, the superintendent motioned him to proceed. The horses, though gentle, were excited and had been rearing about; and, as Ungles loosened the reins, they plunged forward and ran at full speed for some distance before he regained control of them. As they neared where the decedent was standing he undertook to cross the street, apparently to avoid them, and was run down and so seriously injured that he died the same day. It was made to appear that the odor of wild animals caused fear in horses, that the street was one of those most traveled in the south part of the city and of unusual width between the curbs, that there were no ropes nor barricade along the street nor guards on the ground to warn spectators or drivers of danger, and that, after the wagons were placed in the street, teams of two, four, six, or eight horses were hitched to the wagons and these hauled to the ground for the exhibition on East Twentieth street. This is a suit to recover damages to the child's estate consequent on his death; and, as a jury was directed for defendant, the sole inquiry is whether the evidence was sufficient to carry the issues raised to the jury.

[1] The grounds of negligence charged in the petition are that defendant, disregarding its duty to protect the citizens and the public from dangers resulting from the nature of unloading show equipment, animals, etc., and disregarding its duty to keep the street in a reasonably safe condition, did carelessly and negligently commit a nuisance by unloading the same in the street without providing any safeguard to the public whatever, and without providing any agents or employés to warn the public, or to prevent the children from the school near by to be attracted on the street and subjected to the dangers necessarily arising from the unloading of the brilliantly painted wagons, filled with animals on the street. What seems to be charged is the commission of a public nuisance by obstructing or incumbering a public street otherwise than by fences or buildings. Sections 5078, 5081, Code. If so, it is plain that the evidence was not such as to warrant an affirmative finding on the allegations. Such exhibitions are not necessarily unlawful. Power to regulate, license, or prohibit circuses and menageries is expressly conferred on cities and towns. Section 703, Code. Only when given in disregard of the exercise of this power can they be said to be unlawful. The defendant had obtained a license from the city authorities to parade its streets and to give exhibitions. The latter were to take place on grounds at the corner of Grand avenue and East Twentieth street. The train containing paraphernalia of the circus and the menagerie was on the side track of the Chicago, Burlington & Quincy Railway Company, south of what are known as the old depot grounds and was being unloaded by hauling the wagons to the ends of the cars and then on plank extending from the ends to the ground in Southeast Fifth street. The main track also was on this side of the grounds, while another side track extended north thereof, and, as we understand it, a spur track ran across said grounds. The depot was unoccupied. The area of the grounds does not appear, though referred to by some as a vacant lot. A witness, George Eaton, well described the situation and the manner of unloading the cars:

“They were unloading some of the wagons from the cars, and a crowd of people standing around, here and there and every place. They were unloading these heavy wagons. There was a canvas over most of them, and they were loading them from the east to Fifth street. The car stood east of Fifth, and the gangplank ran down to the approach of the cars there and landed them on Fifth street crossing, and trailed them over there north to the K. D. tracks, come across the K. D. tracks on both sides of the street. They had a couple of snub teams with snub ropes. I should think about 25 feet. A man walks on the edge of the car, and hooks the ring on the corner of the wagon, another man driving the team from the back end to the gang plank, a couple of fellows with poles guide the wagons as they came along, and another fellow there with a team to haul them up. Fifth street was paved to the Q. tracks. When they came down into the paved street they generally stopped the wagons within 7 or 8 feet of the gangplank with the snub rope. They had an extra team there to snap on them to pull them away. As these wagons came off of the cars they snap an extra team and pull them up the road north as far as the K. D. tracks. Then they hooked four to six and eight head of them to pull them to the ground. I never paid any attention as to how long any particular wagon was left, but there was, I should judge, 15 or 20, and maybe more, wagons standing there at a time, from the time they began until they got them all off. There were not so very many people on the west side of the street where I was standing, but there was quite a few on the east, men, women, and children.”

[2] Ponies had been placed on the depot grounds, how many does not appear. It is apparent that the wagons must have been unloaded from the end of the cars, for, without the great inconvenience of turning on the car, these could not have been taken from the side, and, as the tracks were considerably above the surface on either side except at the crossing, they must have been taken down on the street, if unloaded at the ends of the cars. As they were to be hauled away to the show ground as soon as the facilities had would permit, it ought not to be said that defendant was negligent in backing the wagons to the curbing on either side of the street with tongues diagonally toward the center so that the two, four, six, or eight horse teams might be conveniently attached thereto when hauling them away. The way between these rows of wagons appears to have been kept open, save during the process of lowering from the cars and occupancy of the street during these brief intervals could not well have been avoided. To have hauled the wagons therefrom over on the depot grounds and shortly thereafter attached the teams thereto and have hauled them back again to the highway would seem useless, and not calculated to relieve the situation or to have rendered passing along the street less dangerous. Indeed it would seem that such a course would have tended to create confusion and have increased the danger in the making use of the street. The system while making full use of the street had the virtue of simplicity, and in so far as the record discloses the unloading proceeded in an orderly fashion and with great rapidity. Besides there is nothing in the record indicating that the depot grounds were suitable for use for storing the wagons thereon, or that they were large enough for handling them and the many horse teams thereon.

[3] But it is said that the odor from the animals, the noises by them emitted, were calculated to frighten horses, and this was proven to be so. That something is calculated to scare horses, however, will not require it to be kept from the street. Running a wheelbarrow or engine or other vehicles on the street has that tendency. In Bostock-Ferari Amusement Co. v. Brocksmith, 34 Ind. App. 566, 73 N. E. 281, 107 Am. St. Rep. 260, the judgment defendant's employé was leading an ugly-looking, but docile, bear, securely chained, along a street, when complainant's horse became frightened, and in a suit he recovered for consequent damages. In reversing the judgment the court, speaking through Comstock, J., said:

“The liability of the appellant must rest on the doctrine of negligence. The gist of the action as claimed by appellee is the transportation of the bear, with knowledge that it was likely to frighten horses, without taking precaution to guard against fright. An animal feræ naturæ, reduced to captivity, is the property of its captor. 2 Black. Comm. 391, 403; 4 Black. Comm. 235, 236. The...