Perry v. Clarke County

• Decision Date: 10 April 1903
• Citation: 94 N.W. 454,120 Iowa 96
• Parties: F. E. PERRY, Appellee, v. CLARKE COUNTY, Appellant
• Court: Iowa Supreme Court

94 N.W. 454

120 Iowa 96

F. E. PERRY, Appellee, v. CLARKE COUNTY, Appellant

Supreme Court of Iowa, Des Moines

April 10, 1903

Appeal from Union District Court.--HON. H. M. TOWNER, Judge.

ACTION at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

W. S Hedrick for appellant.

J. S Banker, Sullivan & Sullivan and Stivers & Slaymaker for appellee.

OPINION

WEAVER, J.

On the 22d of October, 1900, the plaintiff was moving a traction engine along a public highway in Clarke County, and, while crossing a county bridge upon the line of his travel, said structure gave way, precipitating the plaintiff and engine into the gorge below. In the fall the plaintiff was pinioned beneath some portion of the engine, from which position he was not rescued for several hours, resulting in very severe physical injuries, and much pain and suffering, for which he seeks to recover damages. He alleges that the bridge was old, decayed, weakened, and unsafe for public use, of which condition the county had notice, but failed to use reasonable diligence to remedy the defect, and that by reason of such negligence the accident occurred, without contributory negligence on his part. The defendant denies the plaintiff's claim, and further alleges that the injury to plaintiff occurred more than three months prior to the commencement of this suit, and that no written notice specifying the time, place, and circumstances of the accident was served upon the defendant within sixty days from the date thereof as provided by law. It also avers that plaintiff, by his negligence, contributed to the injury of which he complains.

The evidence was such the jury would be justified in finding that the bridge had been built about the year 1884, with some repairs in 1895; that its parts were weakened by natural decay; and that plaintiff, being in the service of one Zink, the owner of a steam threshing outfit, approached the bridge with the engine from the east on the morning of the day of the accident. Before attempting to cross, the engine was stopped, and plaintiff and Zink went forward to examine the bridge. They concluded that the floor was too badly worn to be safe. At this time a member of the defendant's board of supervisors happened to arrive, and, on being asked, responded that he "thought the bridge safe, as it had just been repaired." He proposed, however, to furnish some new plank if Zink would lay them; and, this proposition being accepted, the most of the day was consumed in obtaining the material and making this repair. Some examination was also made of the stringers. When the new plank were laid, plaintiff and Zink, having four sound plank, such as the statute provides shall be used in moving an engine across a bridge, laid them lengthwise upon the west end or bent of the bridge, properly gauged to carry the wheels of the engine, and for the rest of the distance used for this purpose the old plank taken from the bridge, and laid double. Plaintiff then mounted the engine, and moved slowly upon the bridge. He passed safely over until upon the west or last bent, and was on the new plank, when the supporting stringers gave way. There is evidence on the part of defendant tending to show that the engine wheels did not follow the extra plank laid for their accommodation, thus subjecting the bridge to a greater strain than would otherwise have been produced; but this was a matter of dispute in the testimony, which was properly submitted to the jury. It appeared, or at least there was some evidence, that the stringers gave way at the west end, where they lay upon the sill, and were more or less covered and obscured by the earth approach; one witness saying that "the joists at the west end, where they rested on the cap, were almost rotted in two," but that, owing to the dirt, this condition would not be noticed by looking at them from the outside.

I. The first point made by the appellant is that at the time of the accident the wheels of the engine were not upon the running boards, as required by the statute which permits the use of public bridges by traction engines. Code, section 1571. If the fact relied upon by the appellant were conceded or shown without dispute, the conclusion for which it contends could not well be avoided; but, as we have already said, while there was evidence in support of defendant's claim in this respect, there was other evidence, both direct and circumstantial, to justify the opposite conclusion. The question as thus presented was guarded by an appropriate instruction, and properly submitted to the jury.

II. Error is assigned upon the ruling of the court in excluding certain testimony. One of defendant's witnesses was asked: "Now, Mr. Stalker, tell the jury whether or not there was a crossing--a way they might have gone either above or below the bridge without any trouble?" An objection to this as immaterial and incompetent was sustained; the trial judge suggesting that, to render such proof admissible the fact should have been pleaded. Without deciding whether the reason assigned for the ruling is or is not sound, we think there was no error in excluding the answer to this and other questions of like import. The inquiry does not ask simply as to the existence of another route between the same...