Frohs v. City of Dubuque
| Citation | 150 N.W. 62,169 Iowa 431 |
| Decision Date | 19 December 1914 |
| Docket Number | 29622 |
| Parties | EMMA FROHS, Appellant, v. CITY OF DUBUQUE, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED TUESDAY, MARCH 16, 1915.
Appeal from Dubuque District Court.--HON. J. W. KINTZINGER, Judge.
ACTION for damages resulted in a directed verdict for the defendant from which plaintiff appeals.
Affirmed.
Kenline & Roedell, for appellant.
M. H Czizek and M. D. Cooney, for appellee.
The plaintiff is administratrix of the estate of Christ J. Frohs, who lost his life on October 29, 1912, being thrown from a wagon while driving along Couler Street, between 28th and 27th streets in the city of Dubuque. Several days previous, a sewer ditch had been excavated from a house on the west side of the street to the sidewalk about five feet deep and later this was extended to the curbstone and on the 29th, work was begun in excavating from the curbstone to within two feet and four inches of the west track of the street car line. The street was macadamized so that in excavating the ditch stones were removed, leaving the edges of the ditch somewhat irregular, varying in width from 16 to 24 inches, and from 14 to 20 inches deep. From the curbstone, the ditch extended somewhat south of east for a distance of nine feet and ten inches. The earth and rocks taken out were piled on the north side so that the base of the embankment was 3 feet 8 inches to 4 feet wide and varied in height from 1 1/2 inches at the end near the car track to 2 feet in the center and about 3 feet at the curb. At the end of the ditch, near the car track, a plank was laid across the ditch about a foot above the surface and a 2x4 scantling leaned against it with one end in the ground, and at the other was hung a large lantern with white light ten inches in the clear from the scantling and about 3 1/2 feet above the surface. About five feet west of this was a lantern with red globe sitting on top of the embankment. These lanterns had been cleaned and lighted at ten minutes after five o'clock P. M. There were no barriers other than the embankment and no electric lights between 28th and 27th streets, a distance of 600 feet. There was a drug store at the corner of 27th and Couler streets with a glass front, which was lighted at the time. From there to the next street south were no street lights. The deceased was driving a wagon for the Iowa Oil Company, having on it three barrels and several cans or tanks, and at six o'clock in the evening, he had met Purcell, driving a wagon for the Standard Oil Company, at the Giesel Springs saloon, where he took "a couple beers" and left at 25 minutes to seven o'clock, Purcell following. This was about one and one-half miles from the city limits, which were five or six blocks from the place of the accident. His team was spirited and was traveling rapidly along the right side of the street as they approached the ditch from the north. When about fifteen feet from it, his horses turned toward the car track and as the wagon wheel or wheels struck the embankment, deceased fell from his seat in front on to the singletree and, after being carried some distance, fell off and was run over. One wagon wheel struck the white lantern hanging on the 2x4. Both were still lighted, though the red globe may have been somewhat smoky. The night was very dark. The city ordinance provided that:
I. The only eyewitness was John Becker, a draftsman, who was standing at the gate leading to the house from which the ditch was dug. After testifying that the team when about 15 feet from the ditch turned to the east and that he had observed the wagon tracks later, he was asked in substance, "Whether or not the angle of the circle that the wagon was describing at and before it reached the accumulation of rocks and dirt was such that in the event there had been nothing to deflect the course of the wagon whether it would have crossed over the ditch or otherwise." An objection as incompetent, immaterial and irrelevant and calling for a conclusion was sustained, the court remarking that the witness might describe the wagon tracks and where the turn was, and in ruling on a similar question, said he might describe the tracks by using a board, and we understand from the record that he did illustrate on a blackboard. The ruling was not prejudicial. Where the line of a small circle will extend is not a matter of expert evidence but within the knowledge of anyone of ordinary intelligence. Whether in the nature of a fact conclusion need not now be considered. The witness described the curve in its relation to the embankment and ditch, and therefrom the jury was able to say whether, but for some obstruction, the deceased likely would have avoided the ditch. Conditions were such as could be easily described and conclusions drawn therefrom by the jury. The ruling was without prejudice.
II. Whether the city was charged with notice was an issue appropriate for the jury. The permit to excavate and lay the sewer pipe was obtained from the city recorder October 18 1912, and the day previous, permission had been obtained for the sewer connection from the...
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