Hobbs v. City of Marion
| Decision Date | 06 May 1904 |
| Citation | 99 N.W. 577,123 Iowa 726 |
| Parties | MARGARET C. HOBBS, Appellee, v. THE CITY OF MARION, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. W. N. TREICHLER, Judge.
ACTION at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.
Reversed.
Voris & Haas for appellant.
Smith & Smith for appellee.
The plaintiff and her adult daughter were riding in an open carriage drawn by a single horse along a street in the defendant city. The horse, which was being driven by the daughter, became frightened and unmanagable, as is claimed and overturned the carriage in a gutter or ditch at the side of the wagon track, seriously injuring the plaintiff. It is alleged that the ditch was deep and dangerous, and that the city had negligently left the same unguarded and that, but for such negligence, the accident would not have occurred. The petition demands damages for the physical and mental suffering thus occasioned to the plaintiff, together with the sum of $ 150 for expenses incurred in nursing and care made necessary by her injury; for the services of a physician in the further sum of $ 20; and for injury to the carriage $ 10. The claims are all put in issue by the answer.
I. The first point made in argument is that the petition does not allege due care on part of the plaintiff to avoid the injury of which she complains. The allegation made is that plaintiff and her daughter were driving upon the street, "when, without fault or negligence upon her part or that of the driver, the horse became frightened and unmanageable," and in its fright ran the wheel of the carriage into the ditch, thus causing plaintiff's injury. It is said that this does no more than allege absence of contributory negligence in the matter of the escape of the horse from the control of the driver, but not as to the accident which followed. Perhaps the allegation could have been made with more technical aptness, but we think it is sufficient. The pleader evidently intended to be understood as saying that plaintiff and her driver were without negligence or fault in respect to the accident in which the injuries were received, and this was all which was required. The case was tried and submitted to the jury on the theory that plaintiff must show herself free from contributory negligence in order to recover, and, defendant having had the benefit of the correct rule of law in this respect, the court will not indulge in hypercriticism of the pleadings to find a reason for disturbing the verdict.
II. Error is assigned upon the sixth paragraph of the court's instructions to the jury. In this instruction the court charged the jury concerning the elements or items to be considered in fixing the amount of plaintiff's damages in case she was found entitled to a verdict. Among other things the court said: "You may take into consideration what, if any,...
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