Herdman v. Zwart

CourtUnited States State Supreme Court of Iowa
Citation149 N.W. 631,167 Iowa 500
Docket Number29811
PartiesEDWARD HERDMAN, Administrator of the Estate of Margaret Herdman, Deceased, Appellant, v. ALBERT J. ZWART, Appellee
Decision Date28 November 1914

Appeal from Polk District Court.--HON. CHARLES S. BRADSHAW, Judge.

ACTION for damages for personal injuries. There was a verdict and judgment for the defendant, and plaintiff appeals. Affirmed.


Thos A. Cheshire, for appellant.

Parker Parrish & Miller, for appellee.

EVANS J. LADD, C. J., and WEAVER and PRESTON, JJ., concur.



This action was brought by Margaret Herdman, as plaintiff in her lifetime. She died pending the action, and her husband was substituted as her administrator. The decedent was severely injured in a runaway while riding with her husband in a buggy drawn by her husband's horse. The claim is that the horse was frightened by the defendant's automobile. The facts are not greatly in dispute.

The accident occurred on the night of July 6, 1912, at about 10 o'clock at night. The defendant was driving north on Seventh street, Des Moines. While driving along the east side of the street, he observed a standing automobile. In turning to the left to pass such automobile, his lights disclosed plaintiff's horse and buggy in front of him going north. The defendant was at that time quite close to the buggy, and, as he claims, he could only pass it safely on the right side. He passed either between it and the automobile or between it and the east curb. His fender grazed the buggy and frightened the horse. The horse started to run, turning to the left, but was stopped within a very short distance. The incident attracted the attention of a number of persons, who at once came upon the scene. An examination was had of the buggy to ascertain the damage, if any. The injury to the buggy was very slight, and nothing is claimed for it in this action. The horse was nervous as a result of the fright, but was entirely under control. The defendant stopped his automobile and joined in investigating the injury to the buggy. He also offered to take the decedent and her husband in his automobile to their home, which was two or three miles distant. After a period ranging according to the testimony from five to twenty minutes, the defendant proceeded in his automobile to his home, three blocks away. A few minutes later the decedent and her husband proceeded on their way with the horse and buggy. After proceeding a short distance, the horse again took fright and ran away, throwing both of the occupants out of the buggy, and injuring the decedent seriously.

The claim for the plaintiff is that the defendant was negligent in passing the decedent's buggy in the way in which he did, and that, as a result of such negligence, the horse was greatly frightened, and that such fright continued down to the time that he ran away. It was also pleaded by the plaintiff that the fright of the horse was caused the second time by the starting of defendant's automobile when he left for his home. But there was no evidence of any negligent conduct on the part of defendant at that time, and that charge of negligence does not seem to have been pressed at the trial, and was not submitted to the jury.

It is contended for the defendant that he was not guilty of any negligence in the first instance, and that his act of colliding with the buggy did not result in any injury to the decedent, and that such act on his part was not the proximate cause of the injury which resulted later to the plaintiff.

I. It is urged by appellant that the defendant was conclusively negligent in passing the buggy upon the right side. This contention is based upon the following ordinance shown to be in force at the time of the accident:

Vehicles moving slowly shall keep as close as possible to the curb on the right, allowing more swiftly moving vehicles free passage at their left.

Any person driving or running an automobile or other vehicle . . . along any of the streets of this city shall keep to the righthand side of the street and shall turn to the left on passing around any person or conveyance overtaken going in the same direction.

And upon section 1569 of Code, as follows:

Turning to the Right. Persons on horseback or vehicles meeting each other on the public roads shall give one-half of the same, turning to the right. A failure in this regard shall make the delinquent liable for all damages resulting therefrom, together with a fine not exceeding five dollars.

It is urged that the trial court erred because it did not instruct the jury that the defendant was guilty of negligence, as a matter of law, because of the alleged violation of such ordinance and statute. The rule has been long settled in this state that, where the participant in an accident is upon the wrong side of the street or highway, his presence there is prima facie evidence of negligence, and no more. Riepe v. Elting, 89 Iowa 82, 56 N.W. 285; Cook v. Fogarty, 103 Iowa 500, 72 N.W. 677; Carpenter v. Campbell Automobile Co., 159 Iowa 52, 140 N.W. 225; Hubbard v. Bartholomew, 163 Iowa 58, 144 N.W. 13.

Neither the ordinance nor the statute purports to lay down a hard and fast rule of the road, to be followed under all circumstances. Circumstances may confront a person, and often do, when due care would require him to avoid or relinquish the side of the street to which he was otherwise entitled. In such case, he would be required to exercise such due care, and, if he failed to do so, he would be liable for negligence, even though he had planted himself upon the side of the street to which he would ordinarily be entitled. In all cases, therefore, the ultimate question is: What was required by due care, under all the circumstances confronting the actor at the time?

The effect of the statute and the ordinance is to lay the burden of justification upon the man who was on the wrong side of the street. But the test to be applied is that of due care under the particular circumstances. There was no error in refusing the requested instruction.

II. Objection is urged to one paragraph of one of the instructions given by the trial court as to the duty of the decedent to exercise care for her own safety. This instruction charged the jury that the negligence of the husband, if any, could not be imputed to the wife, but that the wife was nevertheless required to use ordinary care. The last sentence of the instruction is assailed, and is as follows:

That is, so far as lay within her power, she was required to exercise the same care as any ordinarily prudent person would be required to exercise under like circumstances.

Special objection is urged to the expression "so far as lay within her power." It is urged that this laid the duty of extraordinary care upon the decedent. We think that a careful reading of the clause will not bear this interpretation. This clause expressly says that she was required to exercise the same care as any ordinarily prudent person. The particular clause objected to implies a possible excuse for a lower standard of care. Its implication is, perhaps, that, if the decedent was under any disability or limitation of body or intellect, it would excuse her from the measure of care required from an ordinary person. There was perhaps no occasion for the qualification, but its tendency was favorable rather than prejudicial to the appellant. If the instruction had required her to exercise all the care that "lay within her power," a different question would be presented. This is the question argued.

III. ...

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  • Herdman v. Zwart
    • United States
    • United States State Supreme Court of Iowa
    • November 28, 1914

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