Homan v. Franklin Cnty.

• Decision Date: 01 February 1894
• Citation: 90 Iowa 185,57 N.W. 703
• Parties: HOMAN v. FRANKLIN COUNTY.
• Court: Iowa Supreme Court

90 Iowa 185

57 N.W. 703

HOMAN

v.FRANKLIN COUNTY.

Supreme Court of Iowa.

Feb. 1, 1894.

Appeal from district court, Wright county; J. L. Stevens, Judge.

Action for personal injuries.Judgment for plaintiff, and the defendant appealed.D. W. Dow, Co. Atty., and W. D. Evans, for appellant.

J. H. Scales and Nagle & Birdsall, for appellee.

GRANGER, C. J.

1.On the 12th day of June, 1890, one of the bridges of defendant county, while plaintiff was passing over it, gave way, and fell to the stream below, in consequence of which the plaintiff was seriously injured, and this action is to recover damages thereby sustained.The following is a part of plaintiff's testimony: “I drove over that bridge a good many times during the year.I observed its condition as shaky.I noticed the bridge.It would shake--oscillate--when you passed over it.It did that morning.There was nothing stuck up to warn me from passing over it.Never saw anything of the kind stuck up there.Cross-examination: Before moving upon my present farm, I lived in Franklin county, by Whiteside's, close to this road, and about two mile from this bridge.I lived there three years.Was farming.This road comes into Ackley past the Revere House.I crossed this bridge a good many times.I noticed it was shaky for the last couple of years.I noticed the braces were out.They were down from the north, and the braces on the south and east were out a couple of inches.I noticed that every time I saw it, and I noticed the shaking every time I crossed it.It shook very much more than bridges ordinarily do, and more than a bridge ought to shake.I noticed that every time I crossed it.I was not fearful about crossing it.I thought it was safe.I never said anything to anybody about it.It shook more than it ought to.The braces were out at more than one place.That was the condition of the bridge that morning when I drove upon it.I am sure of that.I noticed that condition that morning before I drove on the bridge.I live on the county line road.There is a bridge across Beaver creek about a mile and a half east of where this bridge was, and south of my place.There is a road leading to that bridge from my house, but there is not much travel, and I am not much acquainted that way.”

Appellant asked the court to give an instruction as follows: “If you find from the evidence that the plaintiff, at the time he drove upon the bridge, knew its unsafe condition, and that it was imprudent for him to drive upon it at the time, in consequence of its unsafe condition, then his own negligence contributed to the injury, and he cannot recover, and your verdict must be for the defendant.”The court refused it, and gave the following: “You are instructed that if there were no means taken by defendant to prevent the use of the bridge by the public, and from its location and situation the public were invited to pass over it, then the mere fact that plaintiff knew it was unsafe, even though it should appear that there was another safe and convenient way for him to reach his destination, would not render him guilty of contributory negligence if, in attempting to pass over it, he acted with ordinary care and caution, having regard for his own safety.In determining the question of whether he did exercise ordinary care in the matter you should consider all the evidence as to the condition of the bridge and the plaintiff's knowledge thereof, the circumstances under which he drove upon the bridge, and his load, whether there was another convenient and safe way he could have taken, and all other facts bearing upon the question, disclosed by the evidence, and then, if you find that the plaintiff, by his own negligence, contributed in any degree directly to the injury complained of, he cannot recover in this case, even if you should find that the bridge was defectively constructed, or that the defendant negligently failed to keep it in repair, and that the plaintiff was injured in consequence thereof.”It seems to us that the instruction asked states a correct rule of law.If a person about to drive on a bridge knows it to be unsafe and knows it to be imprudent to drive thereon, and in the face of such knowledge he does drive on the bridge, he is negligent; and if he is injured in so doing his negligence contributes to his injury.The proposition seems to be without question, and it is the rule of the instruction asked.The evidence we have quoted is such as to fully warrant the instruction.The instruction given presents, to quite an extent, a contrary rule.It, in effect, says that if a county neglects to adopt means to prevent the use of an unsafe bridge, and from its location and situation the public are invited to pass over it, a person, even though he knows it to be unsafe, and has...