Dale v. Webster Cnty.

• Decision Date: 22 December 1888
• Citation: 41 N.W. 1,76 Iowa 370
• Parties: DALE v. WEBSTER COUNTY.
• Court: Iowa Supreme Court

76 Iowa 370

41 N.W. 1

DALE

v.WEBSTER COUNTY.

Supreme Court of Iowa.

Dec. 22, 1888.

Appeal from district court, Hamilton county; S. M. WEAVER, Judge.

Action by Martha Dale, administratrix of the estate of James Dale, deceased, against Webster county, for the death of plaintiff's intestate. Verdict and judgment for plaintiff for $6,000 and costs. Defendant appeals.Albert E. Clarke, for appellant.

Chase & Chase and G. F. Tucker, for appellee.

ROBINSON, J.

On the 11th day of October, 1884, the decedent was killed by falling from a bridge constructed by defendant over the Des Moines river at Lehigh. The bridge was a little over 300 feet long, and was divided into two spans of equal length. These rested on two abutments, and a stone pier built to a height of about 27 feet from the bottom of the river. Wheel-guards, made of timber about six inches square, and raised two or three inches from the floor, were placed on each side of the bridge. Guard rails were fastened to the superstructure of the spans at a height of about three feet from the floor, excepting at the spaces between the spans. These spaces were about eight inches wide at the floor of the bridge, and nearly six feet wide at a height of three feet. The bridge furnished the chief, if not the only, means of communication between the two portions of the town of Lehigh, one of which was on the east, and the other on the west, side of the river. It was much used by teams and pedestrians, the latter usually walking on the north side of the bridge, the floor of which was about 15 feet wide between the wheelguards. It is conceded by appellee that there had been no hand-rails between the spans for two years. Dale had lived in Lehigh three years at the time of his death. His home was on the east side of the river, and the post-office was on the west side. Soon after supper of the day of his death he went over the bridge for his mail. As he was returning home a short time afterwards, he was overtaken on the bridge, and about 50 feet from its west end, by three men. These state that when they passed him he was carrying a lighted lantern under his left arm, and was holding a letter with one, and, as they think, with both hands, which he was reading. He did not seem to notice them, and once stumbled against the north side of the bridge. They passed on, and when nearing the end of the bridge, heard a sound as of breaking glass. They at once turned about, but Dale and his light had disappeared. They went back to the pier, and discovered that Dale was lying on the rocks, at its base, just south of the north-east corner, dead. His skull was crushed at the right temple, and he had evidently walked or stumbled through the north opening between the spans over the pier. A letter was found near him, folded, and the envelope a little further away. Plaintiff contends that defendant was negligent in not placing hand-rails between the spans. Defendant denies this; denies that it had notice or knowledge of the alleged defect; and insists that Dale's death was the result of his own negligence, in that he knew of the alleged defect, and did not use due care to avoid it.

1. In June, 1885, plaintiff caused to be presented to the board of supervisors of Webster county a claim, of which the following is a copy: “The County of Webster in the State of Iowa, to Martha Dale, Administratrix of Estate of James Dale, Deceased: For damages for loss of life of James Dale by falling from the bridge across the Des Moines river, at Lehigh, in said county, in September, A. D. 1884, by reason of the negligence of said county, $10,000.” This was verified by an attorney for plaintiff. Appellant contends that the bill presented was too indefinite to enable the board of supervisors to act thereon understandingly; that it should have been accompanied by some competent proof; that it should have contained evidence of the death of Dale, and that the bridge was defective; and that it should have specified wherein the county had been negligent. We do not think these objections are well taken. Section 2610 of the Code provides that “no action shall be brought against any county on an unliquidated demand until the same has been presented to such board, [of supervisors,] and payment demanded.” This does not require that the claimant shall produce his evidence, but it is enough if the board is informed of the amount of the claim, and the grounds on which it is made, with sufficient clearness to enable it to investigate the facts, and reach an intelligent decision. While it may be desirable in many, if not in all, cases for the claimant to inform the board fully as to all the facts involved in his claim, and even to submit evidence to substantiate it, yet he is not required to do so. The demand made by plaintiff informed the board of the amount of her claim, and in a general way of its nature, and the facts on which it was based. This would have enabled the board to investigate the case upon its merits, and was sufficient.

2. Appellant contends that plaintiff is not entitled to recover, for the reason that the evidence shows without conflict that negligence on the part of decedent contributed directly to his death. This court has frequently held that when the person injured knew of the danger which caused the injury, and could, without serious inconvenience, or by the exercise of due care, have avoided it, his failure to do so will defeat a recovery. Hartman v. City of Muscatine, 70 Iowa, 512, 30 N. W. Rep. 859;Fulliam v. City of Muscatine, 70 Iowa, 438, 30 N. W. Rep. 861;McGinty v. City of Keokuk, 66 Iowa, 726, 24 N. W. Rep. 506;Parkhill v. Town of Brighton. 61 Iowa, 108, 15 N. W. Rep. 853;Haley v. Railway Co., 21 Iowa, 24,O'Keefe v. Railroad Co., 32 Iowa, 469. See, also, Cunningham v. Lyness, 22 Wis. 247;Gilman v. Inhabitants of Deerfield, 15 Gray, 580;Mynning v. Railroad Co., 35 N. W. Rep. 811;Cummins v. City of Syracuse, 100...