Harvey v. City of Clarinda

• Decision Date: 21 May 1900
• Citation: 82 N.W. 994,111 Iowa 528
• Parties: ANNIE M. HARVEY v. THE CITY OF CLARINDA, Appellant
• Court: Iowa Supreme Court

82 N.W. 994

111 Iowa 528

ANNIE M. HARVEY v. THE CITY OF CLARINDA, Appellant

Supreme Court of Iowa, Des Moines

May 21, 1900

Appeal from Page District Court.--HON. A. B. THORNELL, Judge.

ACTION at law to recover damages for injuries received by plaintiff while driving along one of the streets in defendant city. The defendant demurred to the petition, and its demurrer being overruled, it filed an answer denying the allegations of the petition. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

H. E Parslow and Smith McPherson for appellant.

J. R Good and T. E. Clark for appellee.

OPINION

DEEMER, J.

Defendant is a city of the second class. While driving along one of the streets of that city, plaintiff was thrown from the vehicle in which she was riding, and received the injuries of which she complains. The accident occurred August 24, 1898, and plaintiff commenced her action November 19, 1898. The demurrer was on the ground that the action was barred because no written verified statement of the claim was presented to the city council within thirty days after the plaintiff received her injury, as required by section 1051 of the Code. That section requires a written verified statement of the amount, nature, and cause of the injury, and of the time and place where the injury occurred, to be presented to the council or filed with the clerk within thirty days after the alleged injury was sustained. It is found in chapter 14 of the Code, relating to cities under special charters; and the first section of that chapter (section 933 of the Code) expressly provides that the provision of the chapter shall apply only to cities acting under special charters. With this plain declaration of legislative intent, there is no room for construction. If the section relied on were found in a chapter headed as this one is, there might be room for argument, but with this plain expression of legislative purpose found in the first section of the chapter, considered in connection with the thought that both sections were adopted by the same general assembly there is no room for interpretation. The demurrer was properly overruled.

II. Defendant contends that its alleged negligence was not the proximate cause of the injury. The jury was authorized to find the following facts: Main street, which is one of the principal ones of the city, intersects the right of way of the Chicago, Burlington & Quincy Railroad in the eastern part of the city. At such intersection there are two ways for crossing the railroad track,--one by means of an underground crossing, and the other by what is called a "grade crossing." The railroad track at the point in question is seven and three-tenths feet above the ground level of the street, necessitating an elevated approach either side of the track. This approach is made of dirt. It is one hundred and forty-four feet in length on the west side of the railroad track, and seventeen feet in width at the narrowest point. Immediately west of the west rail of the track it is forty feet in width, but the crossing itself is but seventeen feet wide. The crossing is planked in the ordinary manner. For the first one hundred feet the rise is two and sixty-five-hundredths feet in one hundred, and four and sixty-five-hundredths feet in the remaining forty-four. Between this approach and the north line of the street is the entrance to the underground crossing, and the slope between the driveways at the point where plaintiff received her injuries is thirteen feet wide. The approach has no railings or barricades of any kind. On the evening of the day in question, plaintiff was driving east on Main street intending to cross the railway tracks by the grade crossing, and when her horse had about reached the west rail of the tracks he suddenly turned to the north, and kept on turning until he had the buggy to which he was attached faced westward. Just after he turned and started towards the west, the wheels on the north side of the buggy reached the sloping ground of the approach, causing the buggy to tip to the north, and plaintiff to be thrown therefrom. The alleged negligence is the width of the embankment, the precipitous character of the banks, and the absence of railings or barriers. It is conceded that neither party is at fault or responsible for the horse's turning, and it is also agreed that, after he commenced to turn, plaintiff was free from negligence; but it is contended on behalf of defendant that it was not bound to provide against such accidents, and that, conceding its negligence, still the court ought to say, as a matter of law, that this negligence was not the proximate cause of the injury. There are some cases which hold that a city is not bound to anticipate such accidents, that it is not bound to provide against any use of its streets not contemplated in ordinary travel, and that, if the person injured is not at the time using the streets for the ordinary purposes...