Clark v. Sioux County
| Decision Date | 27 October 1916 |
| Docket Number | 30930 |
| Citation | 159 N.W. 664,178 Iowa 176 |
| Parties | J. D. CLARK, Appellee, v. SIOUX COUNTY, Appellant |
| Court | Iowa Supreme Court |
Appeal from O'Brien District Court.--W. D. BOIES, Judge.
ACTION at law to recover damages for personal injury alleged to have been caused by defendant's negligence. Verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
Anthony Te Paske and T. E. Diamond, for appellant.
C. A Plank and Cecil Gantt, for appellee.
The plaintiff sues as assignee of Mrs. A. F. Johnson, and alleges that, while his assignor was attempting to drive across a certain bridge, built and maintained by the defendant county, her horse fell into a hole in said bridge, or in the approach thereto, and that, in apprehension or fright caused by such accident, she jumped from the carriage in which she was driving, and, without negligence on her own part, received a severe injury. He charges the defendant with negligence, in that the defective condition of the bridge had existed for a long time without being repaired, and without fence or guard to prevent injury to persons rightfully traveling along the public way. Answering the claim thus made, defendant denies that it was in any manner negligent with respect to the bridge, and alleges that plaintiff's injury, if any, was due to her own want of reasonable care. Upon trial to a jury, verdict was returned in plaintiff's favor for $ 1,050, and from the judgment entered thereon, defendant has appealed. The appellant argues for a reversal on the following grounds:
I. That Mrs. Johnson was guilty of contributory negligence as a matter of law. It is said that she was driving a blind horse, and was, therefore, bound to be more watchful to discover defects in the road and bridge, and that the hole into which the horse fell was so large and so plainly visible that, in the exercise of due care, she ought to have discovered it in time to avoid the accident. There was evidence from which the jury could find that the approach was a fill of earth or soil, retained in place by planking extending across the end of the main bridge structure and back a short distance on each side of the roadway. The water in the stream below had worked its way under the planking, washing out some of the earth, and making a hole which extended a few feet along the planking on the north side to the end of the main bridge structure, and thence south along the structure to a point near the north wheel track in the traveled path. It was not guarded in any manner, but one approaching from the east, as did Mrs. Johnson, and seeing the defective place, could avoid it by driving closely along the south side of the way. A witness who was familiar with the place was at work near by at the time of the accident, and came to the aid of Mrs. Johnson when she screamed for help. He said the fill had washed away to a greater extent than was apparent to casual inspection, because the hollow space so created was in part covered by a crust at the top, next to the visible opening. He says:
His statement is supported also by the undisputed fact that, when he came to the rescue, the horse was found in a sitting position, with its hind parts in the hole and its forefeet still upon the main structure of the bridge. The horse was blind, but is described as being gentle, and had been frequently driven by the women of the family. There is no showing that it was not under the control of the driver. Mrs. Johnson did not know of the existence of the defect and did not discover it until the horse had fallen. She had with her another woman, with whom she carried on more or less conversation, and together they noted the fields through which they were passing. Counsel say she did not look ahead at all, nor take any pains to ascertain whether there were any obstructions in the highway; but she does not so say, and no other witness attempts to speak concerning the fact in this respect. She does say she was visiting with her companion and nothing the country scenery, but this is by no means inconsistent with the exercise of reasonable care in driving along a country road. She was, of course, bound to exercise the care of a reasonably prudent person under the circumstances, and with due consideration of the fact that the horse was blind; but there is no hard and fast rule of law requiring her to keep her eyes glued upon the road in front and be herself blind to the scenes through which she drives, or even to refrain from talk with the person by her side.
She cannot go heedlessly into a peril which is or should be manifest to the apprehension of an ordinarily careful person but she may rely, to a reasonable extent, on the assumption that the public authorities, to whose keeping the care and maintenance of roads and bridges are committed, have done their duty. Whether a given act or omission is consistent with the care of an ordinarily prudent person is, with very rare exceptions, a question of fact, to be determined by the jury upon consideration of all the facts and circumstances, and we see nothing in the case before us to except it from the operation of this rule. If the witness Brunskill is to be believed (and his credibility was for the determination of the jury), the horse was moving along or very near the middle of the traveled path, and would have passed the defective spot in entire safety had he not broken through the crust or hardened surface into the space below, which had been hollowed out by the action of the water. The condition described by the witness was not patent to a traveler over the road, and we cannot say that Mrs. Johnson was negligent in failing to discover and avoid it. In other words, the jury could well have believed that the woman did not...
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