Heinmiller v. Winston Bros.

• Decision Date: 12 June 1906
• Citation: 107 N.W. 1102,131 Iowa 32
• Parties: HEINMILLER v. WINSTON BROS. ET AL.
• Court: Iowa Supreme Court

131 Iowa 32

107 N.W. 1102

HEINMILLER

v.WINSTON BROS. ET AL.

Supreme Court of Iowa.

June 12, 1906.

Appeal from District Court, Bremer County; J. F. Clyde, Judge.

Suit to recover damages for personal injuries. Trial to a jury, and verdict and judgment for the plaintiff. The defendants appeal. Affirmed on condition that plaintiff remit a portion of the judgment.

Deemer and Ladd, JJ., dissenting.

Hagemann & Farwell, for appellants.

Springer, Clary & Condon and Sager & Sweet, for appellee.

SHERWIN, J.

In June, 1902, the defendants were engaged in deepening a cut for the Chicago Great Western Railway Company on its line of railway which had been in use for many years. They used in said work a steam shovel described as being 55 feet long, 12 feet high, with a smokestack extending 6 feet above the car, and with a boom 24 or 25 feet high. This cut was spanned near its center by a public highway bridge, the floor of which was from 28 to 30 feet above the bottom of the cut. At the precise time that the plaintiff received the injury for which she seeks recovery, the shovel was not in operation; but it was steamed up and was standing on the track on the east side of the cut and north of the highway bridge. During this time the plaintiff approached the bridge from the east in a carriage drawn by a single horse. The horse became frightened before reaching the bridge and suddenly turned around throwing the plaintiff from the carriage and, as she claims, inflicting the injury complained of. The plaintiff averred negligence in having the steam shovel where it was, and negligence in not having some one stationed on the bridge or approach thereto to “warn travelers of the danger of frightening horses and to aid persons whose horses became frightened in passing over the highway and bridge.” There is a conflict in the evidence as to the exact location of the shovel with reference to the north line of the highway, some of the testimony tending to show that it was partly in the highway and other witnesses testifying that it was wholly north thereof. Its exact location, however, is not material, as we shall later point out.

The first question discussed by counsel relates to the admission of testimony showing that two other persons with horses had passed over the same bridge in the forenoon in question, and while the shovel was standing in about the same place that it was when the accident in question occurred, and that their horses were frightened by the shovel. The appellants urge that the evidence was incompetent because introducing a collateral issue that they were not prepared to meet. A determination of the question thus presented involves the consideration of the relative rights of the defendants in their work on the railway and those of the plaintiff in her use of the public highway. The plaintiff, in traveling along the highway, was exercising her lawful right and the defendants in deepening the railway cut were just as clearly within the rights conferred by law upon the railway company, and this is true whether they were operating the shovel or letting it stand idle within or without the limits of the highway. The rule that every person must so use and enjoy his own property as not to unreasonably injure another is applicable to this case, and in deepening the cut the defendants were bound to act reasonably and with due regard for the rights and safety of persons lawfully using the highway. In other words, they were bound to use reasonable care in making the improvement. Hart v. C., R. I. & P. R. Co., 56 Iowa, 166, 7 N. W. 9, 9 N. W. 116, 41 Am. Rep. 93;Ochiltree v. C. & N. W. Ry. Co., 93 Iowa, 628, 62 N. W. 7;Wolf v. Des Moines Elevator Co. (Iowa) 98 N. W. 301. There can be no liability in this case unless the steam shovel itself, located as it was at the time of the accident, was reasonably calculated to frighten horses ordinarily safe and gentle for road purposes. Wolf v. Elevator Co., supra. The plaintiff was, therefore, bound to prove such fact, and we know of no better way of doing so than by testimony tending to show that other ordinarily gentle horses were in fact frightened by the shovel at about the same time and when it was in practically the same position. If such testimony cannot be received, the fact must be proven by the testimony of expert horsemen or the question must be left for the jury to determine from its own knowledge. Such testimony is held admissible in Bemis v. Temple, 162 Mass. 342, 38 N. E. 970, 26 L. R. A. 254, where it is said: “In the present case the only collateral inquiry which could arise is whether a horse called by a witness “an ordinarily safe and gentle horse” comes within that class. Such an inquiry is certainly simple. We think there would be no practical difficulty in receiving and weighing testimony in regard to the conduct of horses which seem to be like ordinary horses in common use. In House v. Metcalf, 27 Conn. 631, the same question arose and the court says the plaintiff “had a right, not only to show the facts regarding its size, form, location, exposure to view, and mode of operation from which the jury might infer what effects it would naturally, necessarily, or probably produce, but also to prove what effects it had produced in fact. * * * The inquiry in every such case is not whether the evidence offered is sufficient to prove the fact claimed but whether it tends to prove it.” Such evidence has also been held admissible in the following cases: Brown v. Railway Co., 22 Q. B. Div. 391; Crocker v. McGregor, 76 Me. 282, 49 Am. Rep. 611;Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55; Champlin v. Village of Penn Yan, 34 Hun (N. Y.) 33; Quinlan v. City of Utica, 11 Hun (N. Y.) 217, 74 N. Y. 603; Wooley v. Railroad Co., 83 N. Y. 121. See, also, Hanson v. Chicago, St. P. & K. C. Ry. Co., 94 Iowa, 409, 62 N. W. 788, and see Wigmore on Evidence, § 461.

The appellants rely on Hudson v. C. & N. W. Ry. Co., 59 Iowa, 581, 13 N. W. 735, 44 Am. Rep. 692, and other like cases against railway companies and cities, in which it is held that evidence of a prior accident at the same place is inadmissible for the purpose of proving that the way was defective. The decisions are all bottomed on the ground that such testimony concerns collateral facts which the defendants were not bound to meet. We think a distinction may be made between such cases and the instant one. In the former, the...