Dreier v. McDermott
| Citation | 141 N.W. 315,157 Iowa 726 |
| Parties | DREIER v. MCDERMOTT ET AL. |
| Decision Date | 07 May 1913 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Pottawattamie County; A. B. Thornell, Judge.
Action to recover damages, resulting from injuries received by being thrown from a horse, which it is claimed became frightened at an automobile on the public highway. Affirmed.John J. Hess and H. L. Robertson, both of Council Bluffs, for appellant.
John P. Organ and W. H. Killpack, both of Council Bluffs, for appellees.
The plaintiff is the administratrix of the estate of one Louis Dreier, and as such brings this action to recover damages of the defendants, and predicates her right to recover on what she claims to be the negligence of the defendants.
The facts alleged in her petition upon which she predicates her right to recover are substantially these: That on or about the 12th day of September, 1910, the defendants Chapman & Son were in the business of running automobiles for hire. That the other defendant McDermott was in the employment of these defendants, and was charged with the duty of running or driving defendants' automobiles from place to place. That on said day the defendant McDermott was in charge of, and operating, an automobile for the other defendants, and while so doing negligently and carelessly drove one of defendants' cars with great force and violence into and against a horse on which Louis Dreier was then riding on the public highway, knocking the horse down, breaking its leg, thereby throwing the said Louis Dreier from said horse to the ground, causing injuries from which he subsequently died. That said McDermott was at the time of the collision driving said automobile at a high and dangerous rate of speed without due regard to the use of said highway by others, and, while proceeding upon the highway at the point of the collision, turned the automobile to the left or wrong side of the road, and on the side on which Dreier then was, and further was guilty of negligence in that he did not use ordinary care to prevent the collision, and the injuries consequent thereupon. That he failed to exercise ordinary care, in that he did not stop when he saw, or should have seen, the horse on which Dreier was riding had become restive. The plaintiff further says that the said Louis Dreier was free from any negligence on his part contributing to his injury. The defendant for answer to the plaintiff's claim denies each and every allegation thereof.
Upon the issues thus tendered the cause was tried to a jury. At the conclusion of all the testimony, the defendants moved the court for an instruction to the jury to return a verdict for the defendants on the grounds: (1) That there was no evidence before the jury showing, or tending to show, any act of negligence on the part of the defendant such as charged by the plaintiff in her petition. (2) That the evidence before the court did not show that the said Louis Dreier was free from negligence on his part contributing to the injuries of which the plaintiff complains.
The court, upon the submission of the motion, overruled the motion on the first ground, and sustained it on the second ground, saying: “There is some question upon the whole record in my judgment as to whether negligence is shown on the part of the defendant McDermott, but upon that question I would let the case go to the jury, but on the other question raised by the motion, to wit, the negligence of the said Louis Dreier, I think the motion of the defendant ought to be sustained.” Upon that question the jury were directed to return a verdict for the defendant, and did return a verdict for the defendant, and upon the verdict so returned a judgment was entered against the plaintiff, and from this ruling and judgment the plaintiff appeals.
[1] It must be borne in mind that in all cases of this kind, under the repeated holdings of this court, the burden of proof rests upon the plaintiff, not only to establish the negligence charged against the defendant, but also to show, by a preponderance of the evidence, that the party claimed to have been injured by such negligence was free from any negligence on his part contributing to the injury of which complaint is made, or to the conditions out of which the injuries arose.
[2] Negligence is predicated primarily upon a failure to discharge a duty, whether that duty be owing to the public generally or to the individual, and is defined to be the doing of some act which a reasonably prudent and cautious man would not do under like circumstances, or the omission to do some act which a reasonably prudent and cautious man would not omit to do under like circumstances, and which under the law or by reason of peculiar relationships existing it was his duty to do, or his duty not to do.
[3] It is true that the negligence of the defendant and the freedom from contributory negligence on the part of the person complaining is usually a question for the jury, and it has been held that, even where the facts upon which negligence is predicated are not in dispute, it is sometimes a question for the jury to say whether or not the course of conduct charged and proven is in itself negligence; for them to say, from the facts proven, whether or not, under the circumstances of the case, a reasonably prudent and cautious man would have done or would have omitted to do the things charged to have been done. But this is not a hard and fast rule, for it has been held that when reasonably honest minds, having before them all the facts, could, upon a question of negligence or freedom from contributory negligence, reach but one conclusion, it then becomes a question for the court, and then it becomes the duty of the court to instruct the jury definitely and distinctly as to what their duty is under the record so made.
[4] Negligence charged against the defendant as a primary and moving cause of the injury is no different in its essential elements than is the negligence of the plaintiff which contributes to the injury complained of. No party can complain of the negligence of another where his own negligence is a concurring cause in producing injuries. Where the negligence of both parties contribute to the result, the courts will not hear the complaints of either. It is said that this rule is based upon two considerations: (1) That no one shall be permitted to take advantage of his own wrong. (2) Upon the supposed inability of a court of law to apportion the damages occurring to the respective faults of the parties.
[5] So far as this case is concerned, upon the record here presented, we have but one question to consider, and that is: Did the evidence before the court at the time of the ruling on the motion present such a state of facts, which, being conceded (and they must be conceded for the purpose of this case), that they showed such conduct on the part of the deceased, contributing to the condition out of which the injuries grew, that honest minds, dwelling upon the facts so presented, could reach but one conclusion--a conclusion adverse to the plaintiff's claim that the deceased was free from any negligence contributing to his injury, or the conditions out of which, and as a consequence of which, the injury complained of arose and followed. To sustain the ruling of the court, this question must be answered in the affirmative. Otherwise, it was a question for the jury.
The trial court was of the opinion that the evidence was insufficient to show that the deceased was free from negligence on his part contributing to the injury of which the plaintiff complained, and the court so held in full recognition of the rule hereinbefore stated. It becomes our duty, therefore, to examine the evidence upon which the court's ruling was predicated, and to ascertain therefrom whether or not it presented such a state of facts that honest minds could not differ as to the conclusion that should be reached.
It appears from the evidence in this case that the road on which the deceased and the defendant McDermott were traveling runs east and west; that the defendant McDermott was driving an automobile, proceeding westward on the road, and the deceased proceeding eastward on the same road; that at the point where they met there are banks on either side; that the roadway was about 24 feet wide; that the deceased was riding a very fine, high-bred mare, being three-quarters running stock, very quick of action, and difficult to handle and control when excited or frightened; that he had known this mare intimately for several years, had ridden her frequently and knew her peculiar characteristics, and the manner in which she conducted herself when frightened, knew that she was afraid of automobiles and traction engines; that he purchased her from one Dr. Wyland, who had owned her for about seven years; that he worked for Dr. Wyland, and had an opportunity of seeing and knowing this horse and her eccentricities and vagaries; that h...
To continue reading
Request your trial