Ferguson v. City of Des Moines, 35920.

• Decision Date: 01 April 1924
• Docket Number: No. 35920.,35920.
• Citation: 198 N.W. 40,197 Iowa 689
• Parties: FERGUSON v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

197 Iowa 689

198 N.W. 40

FERGUSON

v.CITY OF DES MOINES.

No. 35920.

Supreme Court of Iowa.

April 1, 1924.

Appeal from Municipal Court of Des Moines; Herman F. Zeuch, Judge.

Action for damages to plaintiff's autobile, caused by a collision with a street car. The defendant city was sued because of an alleged obstruction on the street, causing the driver of the automobile to divert his course and come in collision with a moving street car. Verdict for the plaintiff and the defendant appeals. Reversed.John J. Halloran, Reson S. Jones, Chauncey A. Weaver, and Paul Hewitt, all of Des Moines, for appellant.

Ed. R. Brown and Paul G. James, both of Des Moines, for appellee.

FAVILLE, J.

About 9 o'clock in the evening of the 19th of October, 1922, appellee's son was driving appellee's automobile in a northerly direction on East Ninth street in the city of Des Moines. There is a street car track on said street. The street is 35 feet in width from curb to curb. The automobile was being driven on the right-hand, or east, side of the street. East Ninth street is intersected at right angles by Sheridan avenue, which runs east and west, and a street light is located at the intersection of these streets. The night in question was described as being a “bright” night. The evidence tends to show that appellee's automobile was being driven at the time at a speed of 15 or 20 miles an hour. The automobile was in good condition. The headlights were lighted, and the brakes in good working order.

On the east side of the center of East Ninh street, and 10 or 15 feet south of the intersection of Sheridan avenue, there was a pile of dirt located nearer the street car track than the right curb of the street. This pile of dirt was about a foot in height and about 3 feet long and was narrow on top. It had been placed there by the city authorities for use in repairing a small amount of pavement in that locality. About 3 or 4 o'clock in the afternoon of the day in question an employee of the city placed a lighted lantern upon this pile of dirt. The evidence shows without dispute that the lantern was an ordinary sized lantern with a red globe and was properly filled and cleaned and had a suitable wick. The party who placed the lantern upon the pile of dirt imbedded the base of the lantern about an inch in the dirt to give it a footing and as additional security placed a piece of cement, estimated in the evidence to be approximately 6 inches square, against the base of the lantern on the south side. As the driver of the automobile approached this pile of dirt, coming from the south, he did not observe the lanternand the pile of dirt until, as he claims, he was within some 10 or 15 feet of it. He had already seen a street car which was approaching from the north on East Ninth street and which he locates as being at that time approximately a half block north of the intersection of the two streets. He did not attempt to pass to the right of the pile of dirt, although the evidence tends to show that there was room for him to have passed in safety between the pile of dirt and the curb on the right-hand side of East Ninth street. The driver's testimony is to the effect that he thought there was an opening in the pavement so that he could not drive to the right of the pile of dirt. There was in fact no such opening. The driver did not attempt to stop his car, but he diverted the automobile to the left to pass the pile of dirt, and the automobile was struck by the approaching street car and injured and this suit is brought to recover for the damages so caused.

[1] I. The appellant submitted a motion for a directed verdict on the ground that the evidence failed to show that it was guilty of negligence. This was overruled.

The evidence in behalf of appellee on this question must be considered in the light most favorable to appellee. The evidence shows that at the time of the accident and immediately thereafter the globe of the lantern located upon the pile of dirt was smoked and that the light was obstructed thereby and made dim. The exact distance at which the red light could be observed by a person approaching from the south is variously estimated and is somewhat uncertain under the record. It was a bright, clear night and the arc light on the corner aided somewhat in lighting the locality where the pile of dirt was placed.

[2] The trial court held that the case presented a question for the determination of the jury as to the negligence of appellant in regard to the manner of the placing of the lantern upon the pile of dirt. The city was not negligent per se in having the pile of dirt upon the street, provided it took ordinary, usual and reasonable precautions to warn the public of the presence of such obstruction to travel. Shannon v. City of Council Bluffs, 194 Iowa, 1294, 190 N. W. 951.

[3][4][5] It is not seriously contended by appellee that the city was negligent in failing to adopt some other method than that of placing a red light upon the pile of dirt. The contention at this point narrows itself down to the...