Daggy v. Miller

Citation180 Iowa 1146,162 N.W. 854
Decision Date22 May 1917
Docket NumberNo. 31413.,31413.
PartiesDAGGY v. MILLER ET AL.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Polk County; Lawrence De Graff, Judge.

The opinion states the nature of the case and the material facts. Affirmed in part, and reversed in part.Clark, Byers & Hutchinson, of Des Moines, for appellant Wm. Miller.

Miller & Wallingford and Roy E. Curray, all of Des Moines, for appellant Ira Miller.

Mulvaney & Mulvaney, of Des Moines, for appellant Wagner.

Dowell, McLennan & Zeuch, of Des Moines, for appellee.

WEAVER, J.

The plaintiff brings this action at law to recover damages on account of the death of his intestate, Lena L. Daggy. As ground for charging the defendants with liability for the death of deceased, the petition alleges that on the night of August 29, 1914, deceased was riding along the public highway in a buggy driven by her husband, and that without fault on her part and by reason of the negligence of the defendants the buggy was overturned, throwing her to the ground, where she was run over by an automobile and fatally injured. Specifying the alleged negligence of the defendants, the petition avers that as deceased and her husband were driving along the public road as aforesaid they were overtaken by two automobiles, the one in advance being driven by the defendant Ira Miller, accompanied by his father, William Miller, the owner of said car, while the other closely following was driven by the defendant Wagner, that the Miller car was not furnished with sufficient or proper lights, and that by agreement between all the defendants the two cars were being driven together with the Miller car in the lead to afford it the benefit of the lights carried on the Wagner car. It is further alleged that by agreement of the defendants both cars were to be driven at an excessively high rate of speed, and that in pursuance of such agreement and common purpose and understanding they did operate such cars at a high, dangerous, and reckless rate of speed, without due regard for the safety of others using the public way, and that in so doing the Miller car overtook and ran into the buggy in which deceased was riding, in such manner as to violently throw her out into the road directly in front of the Wagner car, which ran over her, and that from the injuries so inflicted by both cars she then and there died.

The Millers answered jointly, and Wagner separately, each denying all allegations of negligence made in the petition, and alleging that the injury and death of the deceased were brought about by purely accidental causes.

There was a trial to a jury, and verdict returned for plaintiff against all the defendants for $5,742, and from the judgment entered thereon the defendants have severally appealed.

Before attempting a consideration of the several appeals we will recite a few of the facts which are either conceded or have some material degree of support in the evidence. The deceased and all the defendants lived in the country north of the city of Des Moines and had all been in the city on the afternoon in question. In the evening, after dark, all moved along the same road homeward, though there was no immediate association between the defendants and deceased. The latter evidently left the city first, and had not been seen or overtaken by the defendants until the moment of the collision hereinafter mentioned. The Millers concede that the lighting apparatus on their car was weak or defective, though they insist that their lamps were not extinguished, and that the light so afforded was reasonably sufficient. The evidence would justify the finding that because of the unsatisfactory condition of the lights on Miller's car there was an agreement between the defendants that Wagner should follow it with his car, on which the lights were in order. Concerning the rate of speed at which they were moving at the time of the collision, the defendants unite in estimating it at not to exceed 15 to 20 miles per hour. There is evidence, however, of statements and admissions on their part soon after the accident indicating that they were running at 25 miles or more per hour. It appears quite conclusively that defendants came upon the buggy without discovering it until collision was imminent, when Miller made a quick turn to the left, and, in attempting to pass, the hub of the right rear wheel of his car caught the left rear wheel of the buggy, tossing it in such manner that the woman was thrown to the ground, where, as the evidence fairly tends to show, she was almost immediately struck by the Wagner car. Plaintiff's evidence also tends to show that the buggy, when struck, was on the right-hand side of the middle of the traveled way, and that deceased was not guilty of any contributory negligence on her part.

I. We give first attention to the appeal of the defendant William Miller.

Concerning the charge of negligence in the manner of lighting the Miller car and its management and rate of speed at the time of the collision, it is argued in behalf of this appellant that there is no evidence of any insufficiency of light, and that, although this defendant was the owner of the car and riding therein, he had no hand or part in driving it, and is therefore in no wise liable for the consequences of the collision. Neither contention is sound. It is true that the defendants' witnesses unite in saying that the lights on this car were not extinguished and were of sufficient strength to light the road in front of them in the manner required by law, but, on the other hand, the husband of the deceased, who was driving the buggy, swears that as he approached the place where the collision occurred and was about to turn to the left to take a crossroad his wife said to him, “Don't turn; There's an automobile coming,” whereupon he looked back, and saw only what appeared to be a dim lantern light, when almost immediately the buggy was struck by the passing car, and he and his wife thrown out.

[1] Had the car lights been shining in the manner claimed by the defendant, it is quite inconceivable that the husband should not have recognized their meaning, and while it is possible that he is mistaken or does not testify truthfully, the question of fact so raised was for the jury. Moreover, the plaintiff's case in this respect is strengthened by the well-established fact that the lighting equipment of the car was defective, and that because thereof it was agreed that the Wagner car should follow, and thereby lend the benefit of its lights in case it was needed. Added to this is the further fact that, although the buggy was in the road where the lights of the Miller car, if reasonably sufficient, would naturally have revealed it to the defendants in time to prevent the collision, yet neither Ira Miller, who was driving the car, nor his father, who was riding with him, discovered it until almost the instant of the crash. Altogether the fact whether this car was lighted was a question for the jury.

[2] Neither can this appellant escape legal responsibility for the consequences of the collision by proof that he was himself wholly passive and took no part in the driving or management or control of the car. He was admittedly the owner of the car, clothed with the right and authority to control it. He was present where, had he been so minded, he could have exercised such control. The driver was his own minor son, a boy of 17 years, subject to his authority, and presumably engaged in his service. If the car was...

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10 cases
  • McDonald v. Robinson
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1929
    ...of the same or the creation of smoke or foul smelling gases. The implication sought to be drawn by appellant from Daggy v. Miller, 180 Iowa, 1146, 162 N. W. 854, is far-fetched. This case not only announced, but followed, the rule applicable to the present controversy. If there is any langu......
  • Bauer v. Johnson, 51635
    • United States
    • Supreme Court of Illinois
    • March 28, 1980
    ...(See Wheeler v. Darmochwat (1932), 282 Mass. 553, 183 N.E. 55; Powers v. State (1940), 178 Md. 23, 11 A.2d 909; Daggy v. Miller (1917), 180 Iowa 1146, 162 N.W. 854; Rodgers v. Saxton (1932), 305 Pa. 479, 158 A. 166.) The latter case contains this important statement: "Ownership of a car doe......
  • McDonald v. Robinson
    • United States
    • United States State Supreme Court of Iowa
    • April 5, 1928
    ......536); Howard v. Union Traction Co., supra;. Little Schuylkill Navigation, R. & C. Co. v. Richards's Admr., 57 Pa. 142 (98 Am. Dec. 209);. Miller v. Highland Ditch Co., 87 Cal. 430 (25 P. 550); Verheyen v. Dewey, 27 Idaho 1 (146 P. 1116);. Watson v. Pyramid Oil Co., 198 Ky. 135 (248 S.W. ... creation of smoke or foul-smelling gases. . .          The. implication sought to be drawn by appellant from Daggy v. Miller, 180 Iowa 1146, 162 N.W. 854, is far-fetched. This case not only announced, but followed, the rule. applicable to the present ......
  • Jones v. Cary
    • United States
    • Supreme Court of Indiana
    • December 8, 1941
    ...an owner tacitly consents to such negligent operation. Willis v. Crays, 1926, 84 Ind.App. 253, 151 N.E. 13;Daggy v. Miller, 1917, 180 Iowa 1146,162 N.E. 854; Chambers v. Hawkins, 1930, 233 Ky. 211, 25 S.W.2d 363. In the instant case the evidence shows that the appellant Jones was the owner ......
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