Cresswell v. Wainwright

• Decision Date: 14 February 1912
• Citation: 134 N.W. 594,154 Iowa 167
• Parties: CRESSWELL v. WAINWRIGHT.
• Court: Iowa Supreme Court

154 Iowa 167

134 N.W. 594

CRESSWELL

v.WAINWRIGHT.

Supreme Court of Iowa.

Feb. 14, 1912.

Appeal from District Court, Taylor County; H. M. Towner, Judge.

Action to recover damages for personal injuries, alleged to have resulted to plaintiff by reason of the negligent operation by defendant of an automobile, causing the fright of a team of horses and the overturning of the buggy to which they were hitched, and in which plaintiff was seated. There was a verdict for plaintiff in the sum of $10,000, and from judgment on this verdict defendant appeals. Reversed.McCoun & Burrell, Crum, Jaque & Crum, and Tinley & Mitchell, for appellant.

W. M. Jackson, D. W. Higbee, and J. R. Locke, for appellee.

McCLAIN, C. J.

For a full understanding of the bearing of the alleged errors committed by the lower court in the trial of the case, it will be necessary to recite quite fully the evidence introduced for the plaintiff, the sufficiency of which to justify a verdict against defendant is questioned by the appellant. The plaintiff, a married woman, residing with her husband on a farm near the town of Lenox, came to that town in the afternoon of August 9, 1909, in a buggy, driving a team of horses which she and other witnesses described as quiet and easy to manage, and not afraid of automobiles. She hitched her horses, about 4 o'clock, at the so-called “hitching rack” on the south side of Ohio street, running east and west through the town; the place where the team was thus hitched being about 100 feet east of Main street, which runs north and south. As hitched, the heads of the horses were towards the southeast, and they had on bridles with blinds, and the top of the buggy was up. Leaving the horses in this position, in which they remained until the occurrence immediately connected with the accident to be hereafter described, the plaintiff went to the home of her father on the north side of Ohio street almost immediately opposite the place where the horses were hitched, and remained there for supper. About 7 o'clock, while it was still broad daylight, plaintiff, accompanied by her mother, crossed the street from her father's house to the team, intending, after unhitching it, to drive east on Ohio street towards her home. Her testimony as to what then happened was as follows: “My mother went with me when I started home. Father and mother both went to assist me to go home. I untied the team. My mother was on one side, patting the horse on the neck; the team was named Bessie and Daisy. When I got into the buggy, I took hold of the lines, one in each hand; the team was standing perfectly quiet. The first thing I noticed about the team being frightened they turned their heads and shied. I did not know what caused them to do it. I held onto the lines, and they whirled and reared and turned with me. When they turned a half circle, I saw what caused the trouble. I saw an automobile by the Brown building, right west of me, coming towards me. It was Sam Wainwright's automobile. I said: ‘Mother, there is an automobile. Catch Bess! Catch Bess quick!’ Mother caught hold of the rein; it was tied up to the backband. I went around once and a half before the buggy upset. Q. Where was the automobile when they became very violent? A. It would be turning south. It was not out of sight when I called for help. I saw some people standing on the corner, and I called for help.”

In explanation of this testimony and that which is to be hereafter referred to, it should be stated at this place that plaintiff's mother was at the left-hand side of the team, and took hold of the hitching strap attached to the bridle of the horse nearest her, named “Bess”; and that, notwithstanding her efforts to stop the team, the horses turned to the left, making two or more circuits in the street; and that in the course of their turning the buggy was cramped, and plaintiff was pitched out on the ground. The “Brown building,” referred to by plaintiff, is on the northwest corner of the intersection of Ohio and Main streets, and therefore across the street west from the residence of John Madden, plaintiff's father. The Madden store building, hereafter to be referred to, is on the southwest corner of the intersection of the two streets and fronts east; and on the southeast corner of the street intersection is the Meagher building.

Mrs. Madden, the mother of plaintiff, testified that she went across the street with the plaintiff to see her off, and while the plaintiff unhitched the team stood beside the horse “Bessie,” the one on the left side of the team, with one hand on the bridle rein, the other on the neck of the horse, petting her; the team being headed a little southeast. As appears from the abstract, she continued as follows: “When my daughter untied the team, she began backing the team to start east; she gathered up the lines, and I asked her if she was all right, and she said she was. She had one line in her hand, fastened together. I came through under the rack to go home, and she was starting home, and the horses started up and started to whirl around in a ring. She hollered for me to catch them, hollered, ‘Ma, catch Bess,’ and I ran forward and got Bessie by the bridle rein and held on it, and I was not strong enough to stop the team; they kept going around in that ring, in that circle, and it took me around with them. They went around twice before she was thrown out. After the buggy was upset, the buggy toppled over. After she was thrown out, the team went around and came over near to where she was lying. If they had gone a step or two farther, they would have stepped on her. The road was dry and hard, and she fell in the road a little to one side of the traveled portion. Where she fell, the ground was hard and dry. I did not let go of the horse after the buggy upset. I do not know what frightened the team. Q. What was the first thing in that vicinity that you observed to frighten horses? A. I didn't observe anything. Q. Well, did you notice Mr. Wainwright or his automobile? A. No, sir; I was too much engaged to notice anything. I don't pretend to say what frightened the team. Q. But you do say that they were standing quiet, and all at once they became frightened? A. Yes, sir; they were as quiet as any team.” On cross-examination, this witness testified that the team was going around in a ring when plaintiff asked her to take hold of them, and that the horses were scared; “they were jumping around like horses do when they are scared.”

John Madden, the father of plaintiff, testified that when plaintiff went from his house across the street to the team he was going from the house toward and diagonally across Main street, and did not see plaintiff get into the buggy, but hearing her call he looked towards her and knew that she was in trouble, and at once went in that direction; that as he looked he saw an automobile coming from the west, as he thought, by the Brown building, near the back end of it, which would be 70 or 80 feet from Main street; that when he first saw the automobile he was 10 or 12 feet from the corner of the Madden building, and did not again notice the automobile; and that when he looked towards the team the horses were headed towards the east and turning towards the north. Though he went directly to the team, the plaintiff was thrown out before he reached her.

One Hudson testified for the plaintiff that, standing at the corner of the Brown building, he saw the team “jumping and rearing around,” looking toward the automobile, when he first noticed it; and that the automobile, which he noticed at the same time coming along Ohio street from a point further west than the Brown building, turned and “went down Main street pretty close to the east side”; and that, according to his recollection, the team upset the buggy about the time the machine turned the crossing. On cross-examination, he said that the first he noticed was the team backing, Mrs. Madden having hold of the rein of one of the horses, and that the team kept turning until they made a circle and a half, when the plaintiff was thrown out; and that after he first noticed the automobile on Ohio street he did not observe it again until it was going south.

One N. C. Davidson stated that, as he was sitting on the south side of the Brown building, on the sidewalk, he saw plaintiff's team as she unhitched it, the heads of the horses being a little to the east, and that “at that time there seemed to be something that frightened the team, and they started to go around, and Mrs. Madden got hold of the one horse's hitch rein, and that pulled them around in a circle.” He heard no one call out. About the time that the team showed signs of fright, he saw the automobile coming from the west opposite to him, and turn around the corner into Main street.

One Gordon testified that he was sitting with N. C. Davidson in front of the Brown building when his attention was attracted by the team, and saw plaintiff get into the buggy. He also noticed there was an automobile coming from the west on Ohio street, which turned south on Main street, “and while this automobile was turning around the corner this team made a whirl to the east, and upset the buggy” and threw plaintiff out. And, further: “Just as the automobile turned, I noticed the horses looking up, and as this automobile came around the corner, just as it was turning the corner to go down Main street, they turned to the east and made a whirl to the north, and I think the second time they came around that threw her out. The team turned to the east and then to the north.” And, further: “When I first noticed the automobile, it was crossing the crossing that runs north. The team seemed to be standing quiet until it came up.”

One Harry Davidson testified that, sitting at the corner of the Brown building, his attention was called to the team as they were backing and cramping the buggy and turning it; and that the first he saw of the automobile...