Kendall v. City of Des Moines
| Decision Date | 20 May 1918 |
| Docket Number | No. 31956.,31956. |
| Citation | 167 N.W. 684,183 Iowa 866 |
| Parties | KENDALL v. CITY OF DES MOINES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Des Moines; Joseph E. Meyer, Judge.
Action for damages on account of the alleged negligence of the defendant city in failing to provide proper barriers and to place warning lights at a ditch in one of its streets. Judgment for plaintiff. Defendant appeals. Affirmed.H. W. Byers, Guy A. Miller, and D. Cole McMartin, all of Des Moines, for appellant.
Cummins, Hume & Bradshaw, of Des Moines, for appellee.
This is an action for damages to an automobile which plaintiff alleges in her petition resulted on account of a dangerous excavation in one of the streets of defendant city, while being driven by an employé of the Kendall Auto Taxicab Service Company, to whom it was leased. The excavation complained of was about 20 inches in width, 3 feet in depth, and extended entirely across East Fourteenth street on the south side of its intersection with Hull avenue. A barricade, consisting of 2-inch planks laid on top of a series of tiling stood on end, was placed about 3 feet north of the ditch, extending the full length thereof. The tiling was about 2 1/2 feet in height. No signal lights were placed on or near the barriers. The negligence charged in plaintiff's petition is the alleged failure of defendant to properly guard the excavation or ditch by placing signal lights near enough thereto to warn travelers of the danger thereof.
Counsel for appellant do not, in argument, contend that defendant was not negligent in failing to place proper signal lights in the vicinity of the excavation as a warning to travelers upon the street, but rely for reversal entirely upon the alleged contributory negligence of the driver of the automobile. We gather from the evidence that the night in question was dark, somewhat misty, and hazy, and the place where the excavation and barriers were located dimly lighted. It appears to be conceded that the only street light in the vicinity was an incandescent light which, the driver of the automobile testified, did not sufficiently light the street to reveal the presence of the barriers or the excavation. The accident occurred about midnight, and was observed only by the occupants of the automobile. The contention of counsel for appellant is that the driver of the automobile was negligent in operating same at such a high rate of speed that he was unable to bring it to a complete stop within the distance the barriers across the street were visible to him by the headlights of his automobile; that is, we are asked to hold that the driver of an automobile upon the streets of a city at night must have the same under control, and must not drive it at a rate of speed in excess of that which will enable him to stop the same within the distance obstructions in the street are discernible to him within the radius of the lights thereon.
Our attention is called to Lauson v. Town of Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30;West Construction Co. v. White, 130 Tenn. 520, 172 S. W. 301;Knoxville Railway & Light Company v. Vangilder, 132 Tenn. 487, 178 S. W. 1117; in each of which the court held it to be the duty of the driver of an automobile upon the streets of cities or highways in the nighttime to drive the same at such a rate of speed that it may be brought to a standstill within the distance that he can plainly see objects or obstructions ahead of him, and the failure to do this, in case of accident, will amount to contributory negligence. This, the Wisconsin court declares, is the minimum degree of care that should be required.
It is now provided by statute in Wisconsin that:
“* * * It shall be unlawful for any person to operate any automobile, motorcycle or other similar motor vehicle along or upon any public highway of this state at such rate of speed that such automobile, motorcycle or other similar motor vehicle cannot be brought to a complete stop within the distance ahead that the driver or operator thereof can, with the aid of the lights thereon, in connection with the lights from other sources, see an object the size of a person.” St. 1915, § 1636--52.
In Raymond v. Sauk County (Wis.) 166 N. W. 29, the Wisconsin court extended the doctrine of the above cases to the operation of automobiles in the daytime.
[1] It is settled law of this state that cities must keep their streets free from obstructions and nuisances which interfere with ordinary public travel, and this duty applies to automobiles as well as other vehicles. Wolford v. City of Grinnell, 161 N. W. 686;House v. Cramer, 134 Iowa, 374, 112 N. W. 3, 10 L. R. A. (N. S.) 655, 13 Ann. Cas. 461;Simmons v. Lewis, 146 Iowa, 316, 125 N. W. 194; section 753, Code.
[2] The driver of an automobile has the right to assume that the street is in a safe condition for travel, and that the city has exercised a proper degree of diligence and caution to keep it so. Frazee v. City of Cedar Rapids, 151 Iowa, 251, 131 N. W. 33;Frohs v. Dubuque, 169 Iowa, 431, 150 N. W 62. It is, however, the duty of the driver of an automobile to exercise ordinary and reasonable care for his own safety and of the property intrusted to his care.
[3] Ordinary care, as applied to the driver of an automobile, is such as prudent men in such occupation ordinarily use, taking into consideration the time, place, condition of the highway, weather, the character of the instrumentality employed, the presence of other travelers or vehicles upon the streets, the extent to which the same is lighted, and many other facts and circumstances often present and necessary to be considered. Under the doctrine of the Wisconsin and Tennessee cases, the duty of the driver of an automobile is to have the same constantly under such control, and driven at a rate of speed that will enable him to stop within the distance objects are visible by the rays of its headlights. A failure to do this amounts to contributory negligence, and the driver could not recover in case of injury resulting from a collision of the automobile with an object thus visible to the driver.
It is the general rule that the driver of an autobile is required to use reasonable and ordinary care for his own safety, and cannot be held to the absolute duty of observing all defects and obstructions in the highway, but must make such observations as the circumstances reasonably require. Geise v. Mercer Bottling Co., 87 N. J. Law, 224, 94 Atl. 24;Sweet v. Salt Lake City, 43 Utah, 306, 134 Pac. 1167;Wells v. City of Lisbon, 21 N. D. 34, 128 N. W. 308;City of Valparaiso v. Chester, 176 Ind. 636, 96 N. E. 765;Dunkin v. City, 56...
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