Malony v. Bishop

• Decision Date: 14 December 1905
• Citation: 105 N.W. 407
• Court: Iowa Supreme Court
• Parties: MALONY v. BISHOP & BRIDGES ET AL.

105 N.W. 407

MALONY

v.BISHOP & BRIDGES ET AL.

Supreme Court of Iowa.

Dec. 14, 1905.

Appeal from District Court, Montgomery County; O. D. Wheeler, Judge.

Suit to recover the value of a window. There was a directed verdict for the defendants, from which the plaintiff appeals. Affirmed.C. E. & P. W. Richards, for appellant.

Ralph Pringle and J. M. Junkin, for appellees.

SHERWIN, C. J.

The plaintiff owns a building fronting a public park in the city of Red Oak, the front of the building being about 70 feet from the south side of the park. At the time in question the defendants occupied a building across the street, east of the park and not far from the corner of the block. On the 11th day of November, 1901, a black domestic chicken escaped from lawful confinement near the premises occupied by the defendants, and, following the usual custom, strolled across the street and into the park. Whether the chicken escaped from the control of the defendants is not clearly shown, nor does it matter whether it did or did not, for they directed a young man who was in their employ to catch it, if possible, and to return it to them. The young man found the chicken in the park, near the southeast corner thereof. When his purpose became apparent to the chicken, it started off through the park in a northwesterly direction, running altogether too fast for its pursuer. Most of these little parks are provided with pagodas, which are generally located near the center, and such was the case in Red Oak. Towards this pagoda the chicken took its course, with the young man not a very good second, and when within about 20 feet thereof it suddenly turned south, and, despite the efforts of the boy to head it off, it kept on, and shortly before reaching the south side of the park it took to wing and flew across the street and against the plaintiff's window, doing the damage complained of. No negligence on the part of the defendants is disclosed by the record. It is not negligence per se to chase a domestic fowl, even in a city park. When the boy was running, it was going away from the plaintiff's premises, and, when it turned to go south, he did all that he could do to prevent its further progress in that direction. Such a flight by a domestic chicken is so very rare and unusual that the result in this case could not reasonably have been anticipated, had the pursuit been in the direction of the plaintiff's property. Poland v. Earhart, 70 Iowa, 285, 30 N. W. 637.

The...