Healy v. Johnson
| Decision Date | 06 April 1905 |
| Citation | 103 N.W. 92,127 Iowa 221 |
| Parties | FRANK HEALY, by his next friend, Appellant, v. JOHN JOHNSON, Appellee |
| Court | Iowa Supreme Court |
Appeal from Allamakee District Court.--HON. L. E. FELLOWS, Judge.
ACTION at law to recover damages for personal injuries. Verdict and judgment for defendant, and the plaintiff appeals.
Reversed.
J. P Conway and Trewin & Taylor, for appellant.
No appearance for appellee.
The plaintiff, a child of seven years, in company with other children, was playing upon one of the public streets of the city of Lansing, Allamakee county, Iowa. He was run over and very severely injured by a horse and wagon owned by the defendant. On the claim that the accident was chargeable to the negligence of the defendant, this action was begun. The evidence tended to show that defendant was the proprietor of a retail grocery in Lansing, and in connection with said business kept and used the horse and wagon above mentioned for the delivery of goods to customers about town. On the day in question the delivery outfit was by the defendant intrusted to the charge of an employe for the purpose of delivering goods in the neighborhood where the children were at play. The employe left the horse standing in the street untied and unsecured while he carried the goods from the wagon into the house of a customer, and while thus engaged the horse ran away, and over the plaintiff, as above stated. Of the errors relied upon for reversal of the judgment for defendant we need mention only the following:
I. After pleading the facts above stated, the plaintiff, by amendment to his petition, alleged that at the time of the accident there was an existing ordinance of the city of Lansing prohibiting the leaving of any horse or horses in any street or alley of the city without being tied or secured. By further amendment it was pleaded that there was also another ordinance of the said city prohibiting the riding or driving of a horse on a public street or highway at a speed greater than six miles per hour. A motion by defendant to strike these amendments was sustained, and error is assigned thereon. The grounds assigned for striking the first amendment were that the allegations are immaterial and irrelevant; that there is "no showing that the ordinance was at the time a valid and existing ordinance of the city of Lansing; that it appears from the pleading, as amended, that the act of leaving the horse untied was the act of another person, and not of the defendant; and that the ordinance is invalid because the subject is not expressed in the title." In our judgment, none of these objections were well taken, and the striking out of the entire amendment was error. It was certainly material and relevant to show that the act alleged to be negligent was in violation of law. Such acts are negligent per se, and if plaintiff was able to prove the existence of the ordinance forbidding the leaving of the horse unattended and unsecured in the street and that defendant, or his employe intrusted with the custody of the horse, did, in violation of such ordinance, leave it unsecured in the street, and the horse being thus left ran away and injured the plaintiff without fault on his part, then the defendant was liable, and plaintiff was entitled to recovery. See Correll v. R. R., 38 Iowa 120; Ives v. Welden, 114 Iowa 476, 87 N.W. 408, and Burk v. Creamery Package Co., 126 Iowa 730, 102 N.W. 793.
The caption or title of the ordinance as stated in the pleadings: "An ordinance relating to obstructions of or injury to streets, alleys and sidewalks" can well be paraphrased as "An ordinance regulating the use of streets, alleys and sidewalks," and we think that to prohibit the leaving of horses in such public ways without being properly secured comes fairly within the scope of that expression. Moreover, a horse and wagon left alone and unhitched in the street constitutes an "obstruction" within the ordinary meaning of that word.
The other suggestion--that the allegation is insufficient because it appears that the act of leaving the horse unhitched was that of the employe, and not of the defendant--is clearly without merit. If the employe was by the defendant directed or permitted to use the horse in making delivery of goods then his negligence in the care or use of the horse while so employed was chargeable to the defendant. The responsibility of the master to third persons for the negligence of his servant with reference to matters within the scope of the employment is too elementary to require citation of authorities. The motion to strike the first amendment should have...
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