Kendall v. City of Des Moines
| Citation | 167 N.W. 684,183 Iowa 866 |
| Decision Date | 20 May 1918 |
| Docket Number | 31956 |
| Parties | HARRIET M. KENDALL, Appellee, v. CITY OF DES MOINES, Appellant |
| Court | United States State Supreme Court of Iowa |
Appeal from Des Moines Municipal Court.--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, for appellant.
Cummins Hume & Bradshaw, 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 said automobile was being driven by an employee of the Kendall Auto Taxicab Service Company, to whom it was leased. The excavation complained of was about 20 inches in width and 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 tilling stood on end, was placed about 3 feet north of the ditch, extending the full length thereof. The tiling were 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), West Construction Co. v. White, 130 Tenn. 520 (172 S.W. 301), and Knoxville R. & L. Co. 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 that 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 or drive any automobile, motorcycle, or other similar motor vehicle along or upon any public highway of this state at such a 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." Statutes 1915, Section 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.
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, 179 Iowa 689, 161 N.W. 686; House v. Cramer, 134 Iowa 374, 112 N.W. 3; Simmons v. Lewis, 146 Iowa 316, 125 N.W. 194; Section 753, Code.
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. City of 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 that of the property entrusted to his care. Ordinary care, as applied to the driver of an automobile, is such care 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 such a rate of speed as will enable him to stop within the distance within which 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 automobile 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.L. 224 (94 A. 24), Sweet v. Salt Lake City, 43 Utah 306 (134 P. 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 of Hoquiam, 56 Wash. 47 (105 P. 149); Loose v. Township of Deerfield, 187 Mich. 206 (153 N.W. 913).
In the case at bar, the driver of the automobile testified that he was driving the same at 15 or 20 miles per hour; that he was looking ahead, but did not observe the barriers until he was too close to avoid collision therewith; that he had the car under...
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