Morse v. Inc. Town of Castana , 41190.

• Decision Date: 16 February 1932
• Docket Number: No. 41190.,41190.
• Citation: 213 Iowa 1225,241 N.W. 304
• Parties: MORSE v. INCORPORATED TOWN OF CASTANA.
• Court: Iowa Supreme Court

213 Iowa 1225

241 N.W. 304

MORSE

v.INCORPORATED TOWN OF CASTANA.

No. 41190.

Supreme Court of Iowa.

Feb. 16, 1932.

Appeal from District Court, Monona County; C. C. Hamilton, Judge.

An action to recover damages for personal injuries alleged to have been sustained by the plaintiff while riding in an automobile which ran into a hole on one of the streets of defendant town. From a judgment in favor of the plaintiff in the sum of $2,000 entered on the verdict of a jury, the defendant appeals.

Reversed.

Underhill & Miller, of Onawa, for appellant.

Prichard & Prichard, of Onawa, for appellee.

ALBERT, J.

Defendant town is a municipal corporation organized under the laws of this state with a population of about 400. One of the streets of said town involved in this controversy runs north and south, and over a mile and one-half south from the inhabited portion of said town, but within the corporate limits, this street turns to the east. At a point about 300 feet north of the point where this street turns to the east is the scene of this accident. The width of the street is 50 feet. On the east of the street and running in the same general direction is a creek, and at the point where the accident occurred for a distance of about 75 feet (north and south) this creek impinges on said street.

On the 9th day of April, 1930, one Harold Reese, an employee of the White Eagle Oil Company of Onawa, Iowa, was driving an automobile on a mission of delivering some oil to one Benson, who lived on a farm near Castana. One Kent was riding in the front seat with the driver of the car, and the plaintiff, Eugene Morse, was riding in the rear seat. They passed south over this street, turned to the east, and went some distance and delivered the oil to Benson. They then returned on the highway, turning north at the corner, and had gone about 300 feet when this accident occurred.

This street was constructed with a slight grade in the center and shallow ditches on either side thereof. After the grade was completed, it was neither paved nor graveled, but was 24 feet wide on top, and the evidence shows was kept in good condition by dragging.

It appears from the evidence that where the creek impinges on the highway, as above stated, the action of the water had cut a V-shaped excavation in the street some 16 to 20 feet in depth, the point of the V being to the west. There is some dispute in the testimony as to how close the point of this excavation came to the graded portion of the street, several witnesses, who gave their opinion from observation, testifying that it was “very close,” one witness testifying it was within one foot from the graded portion of the street, while the engineer and persons who made actual measurements thereof stated it was from 4 to 6 feet.

Plaintiff's evidence shows that while they were going north approaching this point, the car was moving at the rate of 20 miles an hour, and was traveling in the center of the graded portion of the highway, when for some unknown and unexplained reason the car veered sharply to the right and passed off of the grade into the slight ditch at the side of the road and thence into the excavation caused by the water in the creek to which reference is made above. The car turned over when it went into the excavation and plaintiff suffered serious injury.

Among other instructions given by the court was No. 6, reading in part as follows: “You are instructed that public travel is not supposed to occupy all the country highway leading out of a village, although within its limits; and the authorities are not required to put the full road in condition as if the public required the use of the whole road; but it is required to use reasonable care and caution to keep in condition and repair the portion of the road so dedicated to the public use by the city. It is the duty of the city to use reasonable care and caution to have such road in a reasonably safe condition for persons traveling thereon in the usual and ordinary modes of travel, but this reasonable care is not limited to the traveled road, but extends to the full limit of the street upon a public highway; and the city should use reasonable care and caution to discover any dangerous excavations or cliffs adjacent to the traveled portion of said road which might be dangerous to the use of said public road in the usual and ordinary manner, and reasonable care and caution might require that the city erect a fence or barrier between such excavation, hole or dangerous cliff over which a traveler using such road in a careful and prudent manner is liable to fall.”

[1] Two complaints are made against this instruction, the first being that it incorrectly states the law, and second that it is inconsistent.

It will be noticed that in the first part of the instruction the jury was told that the authorities are not required to put the full street in condition as if the public required the use of the whole street, but it is required to use reasonable care and caution to keep in condition and repair the portion of the road so dedicated to the public use by the city. So far this part of the instruction, therefore, amounts to a direction to the jury that the city had a right to dedicate only a portion of the street to vehicular traffic, and it was only bound to use reasonable care and caution to keep that part in good condition and repair.

Further in the instruction the jury was told: “But this reasonable care is not limited to the...