House v. Cramer

• Decision Date: 17 May 1907
• Citation: 134 Iowa 374,112 N.W. 3
• Parties: HOUSE v. CRAMER.
• Court: Iowa Supreme Court

134 Iowa 374

112 N.W. 3

HOUSE

v.CRAMER.

Supreme Court of Iowa.

May 17, 1907.

Appeal from District Court, Harrison County; W. R. Green, Judge.

Action for damages occasioned by the frightening of plaintiff's team by the operation of defendant's automobile resulted in a verdict and judgment against defendant, from which he appeals. Reversed.J. S. Dewell, for appellant.

Burke & Tamisiea, for appellee.

LADD, J.

At the intersection of Erie and Second streets, in Missouri Valley, is a blacksmith's shop facing south on Erie street and extending back on the east side of Second street 60 feet. The sidewalk in front of the shop is 12 feet wide, and out farther is a small platform. The sidewalk along Second street is 6 feet wide, and about 2 feet farther out is a row of hitching posts connected with a chain. In the afternoon of November 9, 1904, the plaintiff's wife hitched his team, one to a post and the other to the chain, west of the shop and back from Erie street, a distance variously estimated by the witnesses at from 30 to 60 feet. A short time thereafter the defendant came along Erie street from the east in his automobile with gasoline motor, at a speed of about 6 miles an hour. He slacked up somewhat before reaching the shop, which was 20 feet wide, and came to a standstill with the front of his vehicle about 2 feet east of the east line of Second street, with defendant sitting therein 8 feet further back and 2 or 3 feet south of the platform. This platform was 2 or 3 feet wide, so the automobile when it stopped must have been about 18 or 20 feet south of the shop. If the automobile stopped 20 feet out from the shop and 2 feet from the street line, the team could not have been hitched back from Erie street more than about 35 feet, for the evidence that the horses were then in the line of vision from the automobile seat was undisputed. The defendant may have disconnected the power from the running gear some 25 feet before stopping, but the evidence was in sharp conflict as to whether “the sparker or ignitor was cut off” until after he had stopped. There was also a conflict in the evidence as to whether defendant might have seen the team from the place where he stopped. In short, the evidence was such that the jury might have found (1) that defendant knew that teams were customarily hitched along Second street where Mrs. House had tied plaintiff's team; (2) that the explosion from defendant's automobile engine continued until it had stopped, and after the team had broken loose; (3) that defendant could have seen such team where tied from where he stopped; (4) that the damages were the proximate result of the negligence, if any, in stopping the machine at that place in the manner referred to. And the controlling question for decision is whether, under these circumstances, the defendant might have been found by the jury to have been negligent.

The right to make use of an automobile as a vehicle of travel along the highways of the state, is no longer an open question. Chapter 53, Acts 30th Gen. Assem. (Laws 1904, p. 44). The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling by some other vehicle. But they are to use this means of locomotion with due regard for the rights of others having occasion to travel on the highways. The degree of care required necessarily depends somewhat on the character of the agency employed,and therefore the speed, size, appearance, manner of movement, noise, and the like may be taken into consideration in determining the degree of care to be exacted from the operator of an automobile. Hannigan v. Wright (Del. Super.) 63 Atl. 234;Wright v. Crane, 106 N. W. 71, 142 Mich. 508;Shinkle v. McCullough, 116 Ky. 960, 77 S. W. 196, 105 Am. St. Rep. 249. As was observed in the case first cited, though comparatively new in use, there is nothing novel in the principles of law to be applied with respect to travel in them on the highways. All that is exacted is reasonable care and caution for the safety of others. The decisions thus far have proceeded on this principle, and will be found collected in the notes to McIntyre v. Orner (Ind.) 4 L. R. A. (N. S.) 1131;Christy v. Elliott, 108 Am. St. Rep. 196, 1 L. R. A. (N. S.) 215, 3 Am. & Eng. Cases, 487. See Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345;Raber v. Hinds (Iowa) 110 N. W. 597. The difficulty is in applying the principles to the facts, owing to the novelty of the latter. Of course, noises incident to the operation of the machine are not, of themselves, negligent. Such is the holding with reference to the use of engines on railroads in cases cited by appellant. Abbot v. Kalbus, 74 Wis. 504, 43 N. W. 367. And by the same court this rule has been applied to motor cars. Eischman v. Buchheit, 107 N. W. 325, 128 Wis. 385. But noises may be emitted from a railway engine under such circumstances as to render the company liable as for negligence. Andrews v. Railway, 77 Iowa, 669, 42 N. W. 513;Toledo R. Co. v. Harmon, 47 Ill. 299, 95 Am. Dec. 489;Cobb v. Railway, 37 S. C. 194, 15 S. E. 878;Alsever v. Railway, 115 Iowa, 338, 88 N. W. 841, 56 L. R. A. 748. The same is true with respect to automobiles. The noise attendant on the operation of the machine necessarily depends on its character, and somewhat on the power employed. The defendant's vehicle was propelled by a gasoline engine, which, as the jury was instructed, “when in motion, is attended by explosive noises, and even when standing still, if the machinery is yet in motion, may make a whirring, grinding sound, and it is a matter of common knowledge that horses may be frightened thereby.” The operator is charged with notice of this fact, clearly recognized by the statute cited, and with the duty of so handling his own...