Gould v. Schermer

• Decision Date: 09 April 1897
• Citation: 70 N.W. 697,101 Iowa 582
• Parties: GOULD v. SCHERMER.
• Court: Iowa Supreme Court

101 Iowa 582

70 N.W. 697

GOULD

v.SCHERMER.

Supreme Court of Iowa.

April 9, 1897.

Appeal from district court, Delaware county; J. J. Tolerton, Judge.

Action at law to recover damages for injuries sustained by plaintiff by reason of the alleged negligence of defendant in constructing a bridge in a certain highway in Delaware county, and in creating a nuisance by erecting a cattle pass under said bridge without authority. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals. Reversed.John B. Utt, A. A. House, and Yoran & Arnold, for appellant.

Chas. Husted and Dunham & Norris, for appellee.

DEEMER, J.

At the time of the mishap in question defendant was a road supervisor, and as such he built a bridge across the highway in his district to replace one previously existing at the same point. He made the new bridge 2 feet and 7 inches higher, 6 feet longer, and about the same width as the old. The distance from the top of the bridge to the channel which it crossed was 6 feet and 6 inches. The bridge was about 14 feet and 3 inches wide, instead of 16, as required by statute, and it had no guards or barriers. Shortly after building the bridge the defendant, who owned lands on either side of the highway in which this bridge was located, without permission of the local authorities, erected wing fences extending from the highway fences to the approaches to the bridge, leaving the road fences in place, but with the idea that, if the highway fences should be carried away by high water, his stock could not get upon the highway and run at large. For some months prior to the time of the accident these highway fences were down, and defendant's stock was using the way fenced off by these wing fences as a means of passing from one side of the highway to the other. About the 1st of November, 1892, the plaintiff, then about 72 years of age, started from Strawberry Point, in Clayton county, Iowa, to drive to some point in Illinois. She was alone, and was driving a single horse, which was blind in one eye, attached to a buggy, in which she was carrying meat, butter, and canned goods. As she drove onto the bridge in question a horse ran under it, and so frightened the one she was driving that it suddenly sprang to one side, and with the vehicle to which it was attached fell off the bridge, precipitating the plaintiff to the ground beneath, and causing a fracture of her right thigh bone. This action is to recover damages sustained thereby, and the alleged grounds of negligence are the construction of the cattle pass without authority, and the building of the bridge without railings or barriers at and along the sides of the same to protect travelers from driving or falling off the same. These charges of negligence are combined in the original petition, but in an amendment thereto the plaintiff separated them, and made the first charge of negligence a second count to the petition, and the second a third count. The defendant's answer is (1) a general denial; and (2) an admission that he built the bridge as road supervisor to replace one which was badly decayed and out of repair; that his term of office expired January 1, 1892; and that no notice in writing of the unsafe condition of the bridge was ever served upon him.

More than 100 errors are assigned, and it is manifest that we cannot consider all of them. Such as are argued are presented under 11 heads, and to such of these as we deem important we will turn our attention.

1. The first complaint is of the error of the court in stating the issues. In presenting the case to the jury, the court set forth the substance of plaintiff's claim as made in the original petition, and then stated that the second count was substantially the same, except that plaintiff stated therein some additional items of damage. The court also set forth in concise language the charge in the third count of the petition. The error complained of relates to that part of the charge which says that the first and second counts were the same in substance. It is true the first count makes reference to the bridge and the second does not, but in each liability is predicated upon the charge that the cattle pass was constructed without authority and was the proximate cause of plaintiff's misfortune. In the first it is said that defendant unlawfully built the cattle pass, and that he carelessly and negligently failed to put up guards or barriers at and along the sides of the bridge to protect travelers from driving or falling off the same. But this reference to the bridge did not relate to any duty of the defendant, except as it arose in connection with the construction of the cattle pass. The negligence arising from defendant's breach of duty in failing as road supervisor to construct the bridge with proper care was charged in the third count of the petition and was correctly stated in the charge. The second count was then in substantially the same form as the first, although it omitted specific reference to the bridge.

2. The court allowed in evidence, over plaintiff's objection, a record of the township trustees of the township in which defendant was a road supervisor, to the effect that bridges might be constructed in that township 14 feet in width; and in connection with this evidence gave the following instructions: “(7) The law clothes road supervisors with the power, among others, of keeping the township bridges in repair, and also with the power to build new bridges as and when required, and it is the duty of the road supervisor to do this work in his district; and in doing it he is to exercise his own judgment as to what is needed, as well as when it should be done, and, it being his official duty, he can only be held liable for gross negligence on his part. If the work done by him is done with ordinary care, that is, with such care as men would ordinarily give, he would not be liable for defects which might exist; but if he should be grossly negligent, then he would be liable for injuries occurring by reason thereof. (8) If the law prescribes the way and manner in which any bridge shall be built, as, for instance, if the law prescribes the width of bridges, the road supervisor will be expected and required to follow the law, and, if he does not do so, the same will be negligence and carelessness on his part, for which he will be answerable; but if, from the evidence, you find that the township trustees gave direction as to the width of the bridges in the township, and that such directions were followed by defendant in building the bridge in question, this may be considered by you in lessening or modifying the negligence and carelessness of defendant. (9) The statutes of Iowa require that bridges of the...