Owens v. Iowa Cnty.

• Decision Date: 22 November 1918
• Docket Number: No. 31819.,31819.
• Citation: 169 N.W. 388,186 Iowa 408
• Parties: OWENS ET AL. v. IOWA COUNTY.
• Court: Iowa Supreme Court

186 Iowa 408

169 N.W. 388

OWENS ET AL.

v.IOWA COUNTY.

No. 31819.

Supreme Court of Iowa.

Nov. 22, 1918.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Hugh R. Owens was killed by driving his automobile into an opening in a public highway caused by the washing out of a bridge. This action is brought by his administrators for damages. Reversed.Dutcher, Davis & Hambrecht, of Iowa City, for appellants.

Havner, Messer, Roller & Hatter, of Marengo, Edwin B. Wilson, of Iowa City, and H. L. Bryson, of Marengo, for appellee.

STEVENS, J.

Plaintiffs are the administrators of the estate of Hugh R. Owens, deceased, who was killed about 5 o'clock on the morning of September 15, 1914, when an automobile, driven by him, ran into Hilton creek on a public highway about 2 1/2 miles southeast of Marengo, at a point where a bridge had been washed out a few days before. The former bridge was about 65 feet in length and was reached from the east over a slightly elevated approach. About ten days prior to the accident, a temporary bridge, about 66 feet in length, had been constructed in the highway immediately north of the former bridge, at a much lower elevation than the former bridge, and which was reached from the east by travelers turning to the right at a point about 66 feet east of the end thereof. Deceased was alone at the time of the accident, but two witnesses testified to seeing the car in the immediate vicinity of, and closely approaching, the point of the accident. The car, when it reached the opening in the highway, turned a complete somersault, and lay in the bottom of the chasm upside down with the radiator pointing east.

Deceased left home at about 4:10 a. m. to go to Marengo to take a train leaving that place for Des Moines shortly after 5 o'clock and, at the time of the accident, had traveled a distance of about 12 1/2 miles. His route took him over the “River to River” road, which curved slightly to the northwest from a point several hundred feet east of the bridge.

The negligence charged in plaintiff's petition was the failure of defendants to provide suitable and necessary warning to travelers upon the highway of the dangerous conditions resulting from the destruction of the former bridge. The principal defense urged is the alleged contributory negligence of deceased. The particular facts upon which defendants rely to establish same will be hereafter referred to.

That it was the duty of defendant to maintain its bridges in a reasonably safe condition for travel is not disputed by counsel for appellee; but it is claimed that, about ten days prior to the accident, defendant constructed a temporary bridge across the creek, together with a suitable roadway, leading from a point about 66 feet east of the east side of the former bridge thereto, and that same had been traveled for ten days; that a beaten track was formed and plainly visible to travelers upon the highway in the exercise of reasonable care; that a barricade, consisting of a 2x12 plank about 20 feet in length, to which was attached two upright pieces elevating the north end of the plank so that same was visible to travelers approaching from the east, extended across the highway at the time of the accident, or at least was so placed the night before, and, if down, it was without the fault of defendants, or notice to its officers. The evidence is without conflict that a barricade such as is described above was found lying across the highway after the accident, and that the left wheels of the automobile had passed over the north end thereof. The evidence as to whether the barricade was in position to warn travelers, or lay upon the ground across the highway, is in dispute.

[1] I. Many alleged errors in the admission and exclusion of evidence, and in the charge of the court, are discussed by counsel for appellant; but it will not be necessary for us to refer to all of them in detail. An employé of the contractor, engaged in reconstructing concrete piers for a new bridge across the creek, testified that he was about 200 feet west of the bridge when he saw the lights of a car approaching from the east; that a few minutes thereafter he observed that same had disappeared, and he heard a buzzing noise in the creek. Going to the scene of the accident, he discovered deceased's car in the bottom of the chasm. He was permitted, over the objection of counsel for plaintiff, to testify that the speed of the automobile was 30 to 35 miles per hour. The competency of this witness is challenged. Apparently, he was in a position to observe the movement of the car, and to express an opinion as to its speed. The weight of the evidence was for the jury. His position may have been such that his judgment would be of little value, but the evidence should not be excluded on this account. Huddy on Automobiles (4th Ed.) § 275; Payne v. R. R. Co., 153 Iowa, 445, 133 N. W. 781;Neidy v. Littlejohn, 146 Iowa, 355, 125 N. W. 198.

[2][3] II. The court also admitted evidence of the condition of the brakes upon the car following the accident, without requiring proof that the condition was the same immediately before the accident.

It was the duty of deceased, in the exercise of reasonable care, to have his car equipped with brakes in such condition that he could, by the use thereof, aid in stopping, or controlling, the speed of the car. Evidence of its condition following the accident may have tended to throw light upon its condition prior thereto. It is true that the car had been moved after the accident, before the witness observed the condition of the brakes; but evidence was introduced from which the jury could have found that there had been no change in the condition of the brake after the accident. Evidence showing that the brake was defective after the accident was received, from which the jury might infer that the condition was the same immediately before the accident, and that it was probably known to deceased. The weight of this evidence was, of course, for the jury. It may not have been very persuasive, but we think sufficient was shown to justify its admission. It was proper for the consideration of the jury upon the question of contributory negligence.

[4][5] III. A witness called on behalf of defendant was permitted, over the objections of counsel for plaintiff, to testify that, in a conversation with deceased the evening before the accident, the latter stated to him that he was going to Des Moines the next morning on a train leaving Marengo a little past 5 a. m. Counsel for plaintiff sought to show by May Owens, in rebuttal, that deceased told her the evening before the accident that, if he missed the first train, he would attend to some matters of business at Marengo and take a train leaving that place for Des Moines about 1 1/2 hours later. This evidence was objected to upon the ground that it was a privileged communication between husband and wife and a transaction with a person deceased, and therefore excluded by section 4604 of the Code. The objection was sustained and the evidence excluded. It is now argued by counsel for appellee that this evidence was further inadmissible as a self-serving declaration, although this objection was not made at the time. Section 4604 is not applicable. The evidence was not offered in an action against, but in favor of, the administrator. If, however, this evidence should be excluded as a self-serving declaration, it would be useless to reverse this case on account of its improper exclusion upon other grounds. The declaration, when made, was not intended by deceased to serve any purpose on his part, but amounted only to an expression of his mental attitude, or intention, respecting his contemplated trip to Des Moines. The Supreme Court of the United States, in Mutual Life Insurance Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706, referring directly to proof of...