DeLfs v. Dunshee

• Decision Date: 02 July 1909
• Citation: 143 Iowa 381,122 N.W. 236
• Parties: DELFS v. DUNSHEE.
• Court: Iowa Supreme Court

143 Iowa 381

122 N.W. 236

DELFS

v.DUNSHEE.

Supreme Court of Iowa.

July 2, 1909.

Appeal from Superior Court of Cedar Rapids; J. H. Rothrock, Judge.

Action for damages resulted in a judgment against the defendant, and from it he appeals. Affirmed.Jamison & Smyth, for appellant.

S. K. Tracy, W. E. Steele, and Jno. A. Reed, for appellee.

LADD, J.

One Nelson was driving plaintiff's horse, hitched to a Frazer cart, in an easterly direction on the south side of First avenue. The inside wheel was one or two feet from the curbing, and the horse was moving at the speed of about seven miles an hour. When halfway between Eleventh and Twelfth streets, the defendant's automobile, operated by himself and moving in the same direction at the speed of from 10 to 14 miles an hour, came opposite Nelson without warning of its approach. The estimated distance of its inside wheel from the outside wheel of the cart varied from 2 to 10 feet, and, when some little distance past the horse, some of the witnesses testified that the automobile turned south in front of the horse, while one says it moved straight forward. Neither the horse nor its driver was aware of the approach of the automobile until it was opposite the latter, when the horse became frightened and turned to the south, drawing the cart wheel on the curbing. This threw the driver out of balance and he lost partial control of the horse. It ran forward until seeing the automobile, which had been stopped ahead of him, when it swerved to the north side of the avenue, running against a telephone pole, and his shoulder was broken. According to the driver, the automobile turned to the south in front of the horse when about 10 feet ahead, and stopped when 30 feet from it; while defendant testified that the automobile moved straight on and was 250 feet from the horse when it stopped. There was also a conflict in the testimony as to whether the driver had regained control of the horse when the automobile stopped, and whether it again took fright at the machine, and because of this ran into the telephone pole. Appellant relies on 39 points only for reversal, but these are condensed in argument into 20 divisions. It would have been helpful had the process of elimination been so far continued as to leave none other than the propositions in dispute. These only need be considered. Several questions were propounded to Nelson concerning the characteristics and habits of a horse to which objections were interposed and overruled. As he had been handling horses for 20 years and had observed their habits and conduct, especially when frightened, he was rightly held competent to testify as an expert. Such evidence was admissible. Heinmiller v. Winston Bros., 131 Iowa, 32, 107 N. W. 1102, 6 L. R. A. (N. S.) 150, 117 Am. St. Rep. 405;Moreland v. Mitchell Co., 40 Iowa, 394. But see Kraus v. Ry., 55 Iowa, 338, 7 N. W. 598.

The defendant, after testifying to what occurred, was asked whether there was anything in the appearance of the horse or the position of the driver to indicate that the latter might lose control or that there was danger of trouble. This clearly called for the conclusion of the witness, and the objection on this ground was rightly sustained, as was also a like objection to the inquiry as to whether he could have gotten farther from the cart in passing without getting on the street car track. The street was 60 feet wide between curbings and paved with a double street car track, the inside rail being 23 feet from the curbing. As the width of the automobile was shown, the inquiry merely called for computation. Besides, as the trolley posts were in the center of the street, there was no apparent reason for avoiding the track.

2. Much of appellant's argument is on the theory that no duty is owing the driver of a team by the operator of an automobile about to pass him, save as prescribed by sections 8 and 9 of chapter 53, p. 45, of the Acts of the 30th General Assembly of 1904 (sections 1571i, 1571h, Code Supp. 1907). The first of these prohibits a speed in a closely built portion of a city of more than a mile in six minutes, and the last provides that “any person operating a motor vehicle shall at request, or on signal by putting up the hand, from a person driving a restive horse, or other draft or domestic animal, bring such motor car immediately to a stop, and, if traveling in the opposite direction, remain stationary so long as may be reasonable to allow such horse or animals to pass, and if traveling in the same direction, use reasonable caution in passing such horse or animal.” This does no more than define the duty of the operator of an automobile upon request or signal. It in no way relieves him from the obligation resting upon all travelers on the highway to exercise ordinary care for the safety of others. It in no way relieves him from the duty of exercising reasonable caution in passing a horse or other animal, in the absence of any request or signal. One may travel in a motor vehicle on the streets, but, in doing so, the care exacted necessarily depends somewhat on the rate of speed, size, and appearance, manner of movement, noise, and the like of such vehicle, as well as the means of locomotion of others on the highway. House v. Cramer, 134 Iowa, 374, 112 N. W. 3, 10 L. R. A. (N. S.) 655. As the part of the city in question was closely built, defendant was negligent in moving the...