Cook v. Fogarty

• Decision Date: 26 October 1897
• Citation: 72 N.W. 677,103 Iowa 500
• Parties: COOK v. FOGARTY.
• Court: Iowa Supreme Court

103 Iowa 500

72 N.W. 677

COOK

v.FOGARTY.

Supreme Court of Iowa.

Oct. 26, 1897.

Appeal from district court, Greene county; Z. A. Church, Judge.

Action at law to recover for damages to the person, clothing, and bicycle of the plaintiff, alleged to have been caused by negligence of the defendant. There was a trial by jury, a verdict for the defendant, and a judgment in his favor for costs. The plaintiff appeals. Affirmed.J. A. Gallaher, for appellant.

ROBINSON, J.

In the evening of August 20, 1895, the plaintiff was riding a bicycle from Grand Junction westward towards Jefferson, on a public highway, and when midway between the two towns met the defendant, who was in a buggy, drawn by one horse, and was driving from Jefferson to Grand Junction. At the moment of meeting, a collision occurred between the plaintiff and the horse of the defendant and a shaft of his buggy, which caused the damages for which the plaintiff seeks to recover. The plaintiff claims that he called to the defendant as they were about to meet, and finally dismounted from his wheel, and stood with it by the roadside; but that, in consequence of the negligent and careless driving of the defendant, his horse jumped to the side of the road, and into the wheel, destroying it, and causing a buggy shaft to strike the plaintiff in the breast, thereby knocking him down, and bruising him, and tearing his clothes. The defendant admits the collision, but denies all negligence on his part, and alleges that he exercised due care; that the accident occurred in the nighttime, when it was so dark that a man approaching on a bicycle without a light or signal of any kind could not be readily seen; and that the defendant did not see or know of the plaintiff's approach until the collision occurred. The defendant further avers that the plaintiff traveled without a signal light, and was negligent in not carrying a light or in some manner warning the defendant of his approach, or in not turning out of the highway to avoid the horse and buggy.

1. The appellant contends that chapter 70 of the Acts of the 25th General Assembly, under which the jury was drawn, is unconstitutional, because it is provided in section 4 thereof that in preparing the lists and ballots containing the names of persons who are to constitute the jury list “the name of each alternate juror on the list from cities and towns where the courts are held shall be deposited in a box to be known as the talesman box and not in the first box.” It is said this provision violates both the constitution of the United States and of this state, but the part violated is not pointed out. In the absence of a more satisfactory argument on this point, we deem it sufficient to say that the appellant has failed to satisfy us that the act in question is unconstitutional. The appellant also complains of the manner in which the jury was drawn, as in violation of the act specified. When this case was called for trial, 10 men were drawn from the regular panel, and, no others being present, the plaintiff asked that the jury be completed by calling talesmen, but the court refused the request, and continued the cause until the next day, when the jury was completed from the regular panel. We do not think any violation of law or abuse of discretion in what was done is shown.

2. The evidence authorized the jury to find the facts to be substantially as follows: At the time of the accident it was so dark that a man on a wheel could not have been seen readily further than a short distance. The defendant states that he ought to have seen a man dressed in light-colored clothing a distance of 30 yards or more, and the plaintiff states that he wore such clothing at the time of the accident. But he was not seen by the defendant until the collision had occurred. The plaintiff saw the defendant and his horse, which was gray or white in color, 150 yards before meeting them, and began to slacken his speed. He says he hallooed to the defendant and a companion who was riding with him when they were 50 feet distant, and again a moment later. The defendant did not heed nor hear the warning, but continued to drive his horse in the traveled road, although the sides were level, and he could have turned out easily. The plaintiff turned to the north side of the road, and, a moment before he was struck, threw himself from his wheel, but not in time to avoid the collision. Section 1000 of the Code of 1873 is as follows: “Persons meeting each other on the public highways shall give one half of the same by turning to the right. All persons failing to observe the provisions of this section shall be liable to pay all damages resulting therefrom. * * *” The plaintiff was entitled to use the public highway with his wheel, and was entitled to one-half of it when he met persons going in an opposite direction. He turned to the right as he approached the defendant, as the law provides, and the fact that the latter did not is prima facie evidence of negligence on his part. Riepe v. Elting, 89 Iowa, 83, 56 N. W. 285. The appellant contends that the presumption authorized by law has not been overcome, and that the testimony of the defendant shows conclusively that, if he had been giving proper attention to his horse and the road, the accident would not have occurred. But we think the jury was authorized to find that the presumption of negligence on the part of the defendant was...