Middleton v. City of Cedar Falls

• Decision Date: 21 September 1915
• Docket Number: No. 30010.,30010.
• Citation: 153 N.W. 1040,173 Iowa 619
• Parties: MIDDLETON v. CITY OF CEDAR FALLS ET AL.
• Court: Iowa Supreme Court

173 Iowa 619

153 N.W. 1040

MIDDLETON

v.CITY OF CEDAR FALLS ET AL.

No. 30010.

Supreme Court of Iowa.

Sept. 21, 1915.

Appeal from District Court, Black Hawk County; F. C. Platt, Judge.

Action to recover for personal injuries. Verdict and judgment for the defendant. Plaintiff appeals. Reversed.Sylvester Flynn, of Eagle Grove, and E. H. McCoy, of Waterloo, for appellant.

Pickett & Swisher, of Waterloo, for appellees Corn Belt Telephone Co. and Iowa Telephone Co. J. B. Newman, of Cedar Falls, for appellee city of Cedar Falls.

GAYNOR, J.

This is an action to recover damages for personal injuries alleged to have been caused by the negligent obstruction of a public street in the city of Cedar Falls. There are three defendants. It is claimed that certain of the defendants negligently obstructed the street, by placing a reel or wire spool on the parking, at a point near the west side of Olive street, one of the public streets of the city of Cedar Falls, a few feet east of the west line of the street; that the reel or wire spool was about eight inches wide, about three feet in diameter, and had a number of handles that extended still further out; that this reel had remained at the place on Olive street for about two weeks prior to the plaintiff's injury; that this rendered the street dangerous for travel; that no lights, barriers, or signals of any kind were placed to warn people using the street in the nighttime of the existence or location of this obstruction. This is the negligence charged against certain of the defendants.

The negligence charged against the city is that it did not remove or cause the removal of said reel from the street, and did not use lights, barriers, or signals of any kind to warn persons of its location; that it permitted said street to be used by the public without removing the obstruction, thereby rendering the street unsafe for travel. It is claimed that there was a mail box near the west line of Olive street, and that to reach this mail box the people living on the east side of the street were in the habit of going directly across the street from their respective homes; that this was the customary way of reaching the box; that defendants knew of this custom, and that people were in the habit of traveling across the street at this point to reach the mail box.

It is claimed that the plaintiff was a student attending the Iowa State Teachers' College in Cedar Falls during the year 1910; that for two weeks immediately preceding her injury she was at her home at Eagle Grove; that she roomed on the east side of Olive street; that she did not see or know of the location of this reel; that about 9 o'clock on March 21st she went to deposit some letters in the mail box, and tripped or stumbled over this wire spool, and was thrown violently to the ground and severely injured.

The defendants answer by a general denial. The cause was tried to a jury. At the conclusion of the evidence, the court directed a verdict for the Iowa Telephone Company. The case was submitted to the jury as to the other defendants, and resulted in a verdict in their favor. Plaintiff appeals.

The errors relied upon may be stated under two heads: (1) The court erred in its ruling upon the evidence. (2) The court erred in its instructions to the jury. We take up the errors assigned in this order.

[1] The first error assigned on the admission of evidence relates to the action of the court in denying to the plaintiff the right to show that it was the general custom of people residing on the opposite side of the street to pass diagonally across this street to the mail box for the purpose of depositing mail therein. In rejecting this testimony as to what others generally did, we assume that the court was of the opinion that it did not meet the requirements of the substantive law fixing the standard of care required of the plaintiff. The court in its instructions to the jury said:

“The burden is on the plaintiff to prove that she was free from negligence that contributed to the accident of which she complains.”

“Negligence is the want of such ordinary care and prudence as reasonably prudent men generally, in respect to the same subject-matter and under the same circumstances, would use to endeavor to prevent the injury complained of.”

“By ordinary care is meant that care which persons of ordinary prudence exercise.”

[2] This statement of duty, on the part of the plaintiff, is no doubt in accord with the law; but, however, a different question arises when we attempt to define or consider the evidence by which this substantive fact is proven. We must not confuse this substantive law of duty with the proof by which the mind is brought to a recognition of the duty and its performance. While it is true evidence of what other people generally do, in relation to the same matter, does not fix a legal standard by which to judge the conduct of the complaining party, yet it has probative force upon that issue. We must recognize the distinction between the use of such facts evidentially, and their use as involving a standard of conduct in substantive law. What others generally do, in respect to the same matter, does not, in and of itself, fix the standard by which the conduct of the plaintiff must be judged. What constitutes due care, what constitutes ordinary prudence and diligence, is a question of fact, and, in judging the conduct of another, all the facts and circumstances attending the act must be kept in mind. This is especially true with reference to the degree of care required.

Now, it is not proper to say that, if the plaintiff in this case did just what others generally did in her neighborhood in crossing this street, she was free from negligence; but the conduct of others has a legitimate bearing in determining the ultimate fact as to whether she was then acting as a reasonably prudent person would under the circumstances. Some courts have rejected this evidence, on the theory that by its admission the court fixes a standard of conduct by which the plaintiff is to be judged. The court, therefore, in instructing the jury, should, in fairness to both parties, admit this testimony, and limit it to its legitimate purpose, to wit, as merely evidentiary, and not as a legal standard of conduct.

This rule rests upon the same reason, and is bottomed on the same thought, that admits the showing of a custom among others generally as to the use of a certain instrumentality in a certain way in and about their business. Thus, in Korab v. Railway Co., reported in 165 Iowa, 1, 146 N. W. 765, this court had before it the question as to whether the defendant company was negligent in omitting to properly and sufficiently guard or block the space between the guard rail and the main rail. The question involved was whether it was more dangerous to block or not to block. Evidence was offered to show the custom of other roads in respect to the same matter. This court said in passing upon the question, in substance, not quoting the exact language:

“Custom furnishes no excuse, if the custom, habit, or practice complained of is in itself negligent. But the master's conformity to general usage, custom, or practice is regarded merely as evidence tending more or less strongly to exculpate him from the charge of negligence. After it was shown that the defendant had complied with the usage of other employers in the same line of business, the question whether the particular instrumentality or method was reasonably safe still remained open.”

It was simply held that this kind of testimony was admissible, but was not conclusive upon the question of want of due care.

In Baker v. City of Grand Rapids, reported in 111 Mich. 447, 69 N. W. 740, an action to recover for personal injuries received upon a public street, the Michigan court said:

“Testimony was introduced tending to show that it was customary for people to cross the street in the direction taken by the plaintiff, and that a path had been worn across the street at this point. We think this testimony could not have damaged the defendant, as it was the right of the plaintiff to cross the street at any portion of the traveled way, and he was not confined to the crosswalks [citing authorities]. The fact that others, in considerable numbers, took the same course, bore on the question of plaintiff's care on the occasion in question.”

This case was cited with approval by our court in Finnegan v. City of Sioux City, 112 Iowa, 234, 83 N. W. 907.

If the act complained of was per se negligent, of course, any evidence tending to show that others did the same act in the same way would not tend to exculpate the party complaining; but where the act itself is not negligent per se, and the question is one for the jury as to whether or not, under all the facts and circumstances, the plaintiff conducted herself as a reasonably prudent person would under like circumstances, and in relationship to the same matter, then the testimony becomes material, and has probative force upon the issue.

[3] The foundation for this sort of evidence, though, ought to be clearly laid. If it is attempted to be shown, upon this issue, that others did the same as the injured party did, and that the conduct of others was substantially the same as the conduct of the plaintiff, it must be shown that the facts and circumstances, and conditions under which they acted, were substantially the same as those under which the plaintiff acted. The action of the court in refusing this testimony, under the record made here, would not, in our opinion, justify a reversal of this case. It was not shown, or attempted to be shown, that it was the general custom of other parties to cross to this mail box, over this street, in the nighttime, when the street lights were not burning. The conditions under which plaintiff attempted to cross were not the same as those conditions that attended the act of the others, a showing of which was refused.

[4][5] When we...