Moss v. City of Burlington

• Decision Date: 21 March 1883
• Citation: 15 N.W. 267,60 Iowa 438
• Parties: MOSS v. CITY OF BURLINGTON.
• Court: Iowa Supreme Court

60 Iowa 438

15 N.W. 267

MOSS

v.CITY OF BURLINGTON.

Supreme Court of Iowa.

Filed March 21, 1883.

Appeal from Des Moines circuit court.

The plaintiff is a physician, a resident of the defendant, and brings this action to recover damages caused by a horse and buggy being precipitated down a declivity in one of the streets of the city. It is stated in the petition that “Eighth street is one of the prominent and much-used streets in said city.” Such street runs practically north and south from Division across Market, to Valley street. Between Division and Market streets there is a precipice or broken declivity, beyond which, going north, Eighth street is reasonably well improved. Between Market and Valley streets is another “precipice or broken declivity;” “said declivity being an unimproved portion of said street, and never opened or improved for the use of the public; that in its present condition it is dangerous and impassable for man or beast.” The petition states the ground of negligence on the part of the city to be, “that no monuments, barriers, or railings of any kind mark the end of the improved portion of said street at the brow of said precipice or abrupt declivity.” The material portions of the petition were denied. There was a trial to the court, judgment for the plaintiff, and the defendant appeals.A. M. Antrobus, for appellant.

J. T. Illeck, for appellee.

SEEVERS, J.

This cause was submitted to the circuit court on an agreed statement of facts, which is quite lengthy. The material facts may be briefly stated. The plaintiff tied his horse to a post on Eighth street, south of Makket, and went into a house to visit a patient. From some unknown cause the horse became frightened, broke the fastenings, and ran north on Eighth street, across Market, and down the declivity between Market and Valley streets, and was killed. The buggy and harness were broken and greatly damaged. The city had failed to erect any barriers across Eighth street so as to warn or protect the public of the conceded fact that Eighth street, between Market and Valley, was impassable except by a stairway for foot passengers. It is not claimed the plaintiff was guilty of contributory negligence because of his failure to securely tie the horse to the post. As no damages were sustained because of the declivity between Division and Market streets, its existence is regarded as immaterial.

It will be assumed as to travelers that it was the duty of the city to erect barriers across Eight street at the place where the accident occurred, and that any person traveling along said street in the day-time under ordinary circumstances, who was injured by reason of the failure to erect barriers, and who was not guilty of contributory negligence, could recover the damages sustained because of such failure. It must be conceded, however, that a person traveling along said street under the circumstances just stated, who was injured because he drove his horse over said declivity, that he could not recover of the city for the reason he undoubtedly would be guilty of such contributory [negligence] as would prevent his so doing. The material and only...