Melicker v. Sedlacek
| Decision Date | 04 October 1920 |
| Docket Number | No. 33440.,33440. |
| Citation | 189 Iowa 946,179 N.W. 197 |
| Parties | MELICKER v. SEDLACEK. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Johnson County; R. G. Popham, Judge.
Action to recover damages to the person of plaintiff and her husband, and to the Ford automobile of the latter, by reason of the automobile striking a dog alleged to have been owned or harbored by the defendant. The first count claimed damages for personal injuries to the plaintiff, and the second count for injuries to her husband and damages to his car, and alleging that her husband's cause of action had been assigned to her. Trial to a jury, which resulted in a verdict for plaintiff in the sum of $200, upon which judgment was rendered by the court. The defendant appeals. Reversed and remanded.
Dutcher, Davis & Hambrecht, of Iowa City, for appellee.
The petition alleges in substance that defendant was the owner, or harbored on his premises, a vicious dog; that the dog was in the habit of running out in the highway, and barking and biting at automobiles traveling thereon, and running in front thereof, greatly endangering the occupants of the car; that this fact was well known to defendant prior to the transaction in question, and that defendant made no effort to restrain the dog from continuing such practice, but continued to keep and harbor him; that about 9:30 o'clock in the evening of October 27, 1918, plaintiff was riding along the highway near the premises of defendant, in a Ford car belonging to, and being driven by, her husband; that a short distance from the house of defendant the dog jumped from the roadside in front of the car, and began barking and biting at the front wheel; that the dog so jumped in front of the car without warning to plaintiff, and ran directly in front of the car, and through no fault of plaintiff or her husband the front wheel of the car struck the dog, and caused the car to be thrown from the roadway into a ditch, and against an embankment, turning the car over; that plaintiff and her husband sustained injuries; that she was confined to her bed for a time, and was unable to do her ordinary work; that she suffered severe pain, was damaged in the sum of $50 for loss of time and inability to perform her usual labor, and incurred a doctor's bill of $50, and claims damages for pain and suffering by reason of the negligence of defendant. The second count describes her husband's injuries, and that he lost two weeks' time, by which he was damaged in the sum of $25; that the car was broken and damaged in the sum of $173.75. Defendant denied any responsibility, denied ownership of the dog, denied knowledge of its evil propensities, if any, and alleged that the injuries sustained, if any were sustained, were caused by the negligence of plaintiff and her husband.
There is no dispute as to some of the facts, and at other points there is a conflict. According to defendant's contention, on the night in question, plaintiff and her husband drove out to visit her parents, passing defendant's farm. The night was dark, and mist was falling as they started home, about 9:30 p. m. They had passed over this road earlier in the evening. The road was slippery, and at the place of the accident, and for some distance in either direction, had been recently worked, leaving clods in the center. It was a narrow road, 25 to 30 feet wide, winding, one fairly smooth track on the south side; that the road was made darker by reason of timber on the north side of the road. The general direction of the road was northwest and southeast. They were going west or northwest, at the rate of 12 or 15 miles an hour. The road was slippery and rough, out of the beaten path. The accident happened at a point about 80 rods from defendant's home. On the other hand, appellee contends that the evidence does not show that the road was particularly winding where the accident occurred; that it is shown that at the point in question the road bears to the northwest. Plaintiff also claims that the evidence does not show that the road was darkened by trees, since plaintiff's husband testified there was no timber where he hit the dog. They also claim the evidence shows it did not rain until after the accident, and they deny that the road was slippery; that the road had been worked a month before, and that it was a fairly well traveled road, the main portion at the point of the accident along the south side, and in a well-beaten track. But there is evidence that the traveled track was pretty good, but that the road in the middle was rough. There is evidence that on the following morning a witness saw the track of plaintiff's car where it crossed the roadway diagonally, immediately before the accident. This, too, is denied by other witnesses. The plaintiff's husband testified in regard to this:
“Q. Isn't it a fact that you were on the north side of the road at that time, just before you turned to where you had the accident? A. I cannot state; I don't remember.
Q. You can't remember? Don't you know that you were on the north side of the traveled section of that road, and darted to the southwest, where you had the accident? A. No, sir; I was driving on the south side of the road.
Q. Then why did you say, why did you just answer, that you couldn't say? A. I was driving on the south side of the road when I hit the dog.
Q. Will you swear to this jury that you were not on the north side of that traveled track? A. I didn't cut across to the southwest, diagonally to the southwest, when I hit the dog.
Q. Before you hit the dog? A. I cannot state to that. The road was graded up, and I don't know which side the track was on.”
It is undisputed that plaintiff and her husband were driving at 12 to 15 miles, and that it was about 9:30 p. m. As to the immediate transaction of the striking of the dog, plaintiff's husband says:
That the general direction of the road in front of defendant's house is northwest. There is a bend in the way. The general direction turns from the north to the west, a bend. After passing his house, one goes west for a ways, and then there is a gradual bend to the northwest. As he passed defendant's house, he did not see the dog; first saw him 60 or 70 rods west of the house. After he got his wife out, he didn't see the dog, but heard him howling. The dog was lying in the road, and witness thought he had killed him, the way he was howling, then started to move up the road east towards defendant's house; says he saw the dog distinctly, so he could recognize him; larger than a medium sized dog, dark brown on the back, yellow on the legs, white breast, 16, 18, or 20 inches high; lit a match and could see his wife was hurt; she was bloody; took her to John Sedlacek's house, three blocks off the road; sent for the doctor; describes her injuries and his, and the damage to the car. The next day went to defendant's home, saw and conversed with him, saw the dog there in the yard, and recognized it as the same dog he struck; didn't examine the dog to see whether he was hurt or not. He was limping, can't say which foot, thinks the left hind foot; says defendant wanted to know how it happened; told him, and asked defendant what he was going to do about it. Defendant said he didn't know. Defendant said he wouldn't do anything about paying the damages. Defendant asked if witness knew it was that dog, and witness said he had seen the dog before, and it was, and that the dog had run out at him before; that the defendant admitted that the dog had run out at people, but not that far from the house. He said the dog belonged to his son; that he wouldn't stay at his son's house, and went back and forth, and stayed there with him. The dog had run out at witness as he passed there before, nearly every time he went by; thinks the car went a rod or two after he saw the dog before the contact. “He jumped in front and barked, and jumped in front of the front wheel, and I hit him with the front wheel, and the car ran over him. He lay there in the road afterwards.
“Q. Now, that is all the dog did, just as you testified here? A. Yes, sir.
Q. And that was, that he barked at the front wheel, and after he did you struck him with the automobile? A. Yes, sir; it turned the car to the left.
Q. Now, when you saw the dog coming, what did you do, if anything? A. I didn't have a chance to do anything. I hit him so quick. Threw the clutch out, and put on the brake, and tried to stop, but there was no chance. The traveled road was all right up close to the bank. The wheel track was close to the bank, two feet or three from the bank. The bank was probably four feet high, and the dog was on that side of the road, on the south side of the car, and I was two feet from the edge of the bank. The bank was a bank sloping down, not straight up. The wheel didn't run over the dog. It hit him and threw him under the car. I think just the middle part of the car ran over him. The dog still lay there, after I got out from under the car. After I got my wife out, I went to see the dog, and he was going up the road squealing. That is the dog I saw at defendant's the next morning.
Q. When the dog came towards you, you knew it was the Sedlacek dog? A. I wasn't quite sure. I thought it was his dog. I wasn't sure. His nephew told me it was his. I seen the dog...
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Basney v. Klema
...What constitutes viciousness is often a puzzling question, to be resolved by the facts of a particular case. In Melicker v. Sedlacek, 189 Iowa 946, 179 N.W. 197, 11 A.L.R. 259, where the injuries were caused by the dog's running into and upsetting a car, the court said, p. 959, 179 N.W. p. ......
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