Riepe v. Elting

• Decision Date: 07 October 1893
• Parties: RIEPE v. ELTING.
• Court: Iowa Supreme Court

89 Iowa 82

56 N.W. 285

RIEPE

v.ELTING.

Supreme Court of Iowa.

Oct. 7, 1893.

Appeal from district court, Des Moines county; James D. Smyth, Judge.

Action to recover the value of a horse, the death of which is alleged to have been caused by the negligence of defendant. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

Rothrock and Granger, JJ., dissenting.

S. L. Glasgow, for appellant.

Seerley & Clark, for appellee.

ROBINSON, C. J.

The death of the horse was the result of a collision with a horse and road cart driven by defendant. In the evening of the 22d day of March, 1890, John and Fred Riepe, sons of plaintiff, left the town of Sperry for their home, riding horses. The road which they traveled led westward, and was crossed at the distance of a half mile by another, called the “Wapello Road.” From the place of crossing, the traveled portion of the Sperry road led in a direction north of east, until, at a point about 100 feet east of the crossing, it was within a few feet of the fence on the north side of the road. The accident occurred south of that point. The young men were walking their horses, John being on the north, and Fred on the south, side of the traveled portion of the road. As they approached the place described, defendant drove on the Wapello road from the south until he reached the Sperry road, and then turned eastward. It was so dark that objects could be seen but a short distance away, but John and Fred heard the approaching horse and cart, and turned out of the traveled part of the road to permit them to pass. John, who was riding a horse of a light bay color, turned to the right; while Fred, who was riding the horse in controversy, the color of which was black, turned to the left or southward. When his horse was eight or ten feet south of the traveled part of the road, it was struck in the side by a shaft of the cart, receiving an injury, which caused its death the next day. The plaintiff claims that defendant was driving at a high and reckless rate of speed at the time of the accident, and that the collision was the result of his negligence. The defendant denies that he was negligent, and claims that he was using due care, and driving at a moderate rate of speed, when the accident occurred; that the night was so dark that at first he saw only John and his horse; and that, in endeavoring to avoid them, he turned southward, when a shaft of his cart struck the horse in question, which he then saw for the first time; that he had no reason to look for any one on that side of the road; and that Fred violated a statutory requirement and was negligent in being there.

1. A witness was asked, concerning the defendant, a question as follows: “What are his habits in regard to being a reckless driver?” Defendant objected to the question as being incompetent, irrelevant, and immaterial. The objection was overruled, but the question was not answered. The witness was then asked, “Did you know the habits of Mr. Elting in reference to fast and reckless driving prior to March 22, 1890?” and answered without objection, “I can't just say.” He was then told to “answer the question,” and in response said, “I have seen him drive faster than I would allow a team of mine driven.” The witness was then told to “answer the question ‘yes' or ‘no,’ ” and stated as follows: “Well, I haven't seen him drive just reckless. I have seen him drive faster than I would myself, or would allow a team of mine driven. That is as near as I can say.” The additional abstract shows that the only objection made to this testimony was that interposed to the first question, and that was not answered. No objection was made to any of the questions answered. If it be conceded that the objection made should be regarded as applying to the second question, it is evident that, if the question was erroneous, no prejudice could have resulted from the answer which it sought, which was either “Yes” or “No.” The answers given were not responsive to the question, but they were not objected to, nor was any effort made to have them excluded. The defendant claims that the evidence was immaterial, but he has not preserved any right to object to it at this time, and for that reason the objection he makes cannot be further considered.

2. Section 1000 of the Code contains provisions as follows: “Persons meeting each other on the public highways shall give one-half of the same by turning to the right. All persons failing to observe the provisions of this section shall be liable to pay all damages resulting therefrom, together with a fine not exceeding five dollars, but no prosecution shall be instituted except on complaint of the person wronged.” The defendant asked the court to instruct the jury that if they found “from a fair preponderance of the evidence that the son of plaintiff, on meeting the defendant upon the highway in question, turned to the left, instead of to the right, then, and in that case, the son of plaintiff did not use reasonable care and diligence, and was guilty of negligence, and your verdict shall be for defendant, unless you should further find, from a fair preponderance of the evidence, that the defendant, well knowing this fact, recklessly and wantonly drove upon and against the horse in question, and caused the injury complained of.” There was no evidence that defendant knew that the son had turned to the left until the moment of collision; hence there was no evidence that defendant, knowing that fact, had recklessly and wantonly driven against the horse which was injured. The evidence showed without conflict that the son did turn to the left, and the theory of the instruction asked is, therefore, that the fact that the son turned to the left was in law conclusive evidence of negligence, which would defeat a recovery by plaintiff. The court refused to instruct the jury as asked.

Numerous authorities have been called to our attention which define and illustrate what is known as the “law of the road.” Some of them are referred to in Elliott, Roads & S. 618 et seq.; 1 Thomp. Neg. 281 et seq.; and 2 Shear. & R. Neg. § 649. In the sections of 2 Shearman & Redfield on Negligence cited it is said that “it is the universal custom in America for travelers, vehicles, and animals under the charge of man to take the right hand of the road when meeting each other, if it is reasonably practicable to do so; and this rule is enforced by statute in many states, so far as it relates to travelers in vehicles or on horseback. The statutes upon this subject generally prescribe that travelers shall pass on the right of the center of the road. This means the center of the lawfully worked part of the road. No one is bound to leave that part of the road while there is room upon it, even though the smooth part be entirely on one side of the road.” A statute of Massachusetts requires every traveler reasonably to “drive his carriage or other vehicle to the right of the middle of the traveled part of the road” upon meeting a carriage or other vehicle. Parker v. Adams, 12 Metc. (Mass.) 418. A statute of New Hampshire requires that all persons meeting each other on any road within the state, traveling with carriages, shall reasonably turn to the right of the center of the traveled part of such road. It was said in Brooks v. Hart, 14 N. H. 309, that the object of the statute was “to facilitate and render safe the public travel, and to prevent all interruptions thereof by prescribing the duty of each traveler in reference to every other, and by pointing to each the part of the way over which he may in safety travel without meeting with other obstacles to impede his progress, or from which he might otherwise suffer detriment.” A statute of Kentucky provides that “all vehicles, of every kind, meeting, shall give to each other one-half of the macadamized part of the road, each passing to the right.” Johnson v. Small, 5 B. Mon. 27. Our attention has not been called to any decision which construes a statute in all respects like that of this state, but we may well consider what may be termed the “common law” of the road, and decisions construing it, and statutes which are designed to regulate and make safe and free from interruption travel upon public ways. The terms “highway” and “road,” as used in the statute of this state, include bridges, and may include streets of towns. Code, § 45, subd. 5; Id. §§ 952, 953. Bridges need not be more than 16 feet in width. Id. § 1001. But highways are from 40 to 66 feet in width. Id. § 921. The streets of a town may be much wider. The appellant contends that he was entitled, not merely to one-half of the traveled portion of the traveled highway, but to one-half of the whole of it, at the place of meeting. The language of the statute is that “persons meeting each other on the public highways shall give one-half of the same by turning to the right,” and we are of the opinion that in a proper case a person so meeting another would be entitled to one-half of the full width of the highway. We are not prepared to say, however, that in all cases where two persons approach each other on a public highway with the intent of passing, it is the duty of each to use only that part of it which is on his right of the center, and that, if either should pass the other on the left of such line, he would violate and thus incur the penalty of the statute. It is only when one meets another that he is required to turn to the right. He has the right to use any part of the highway which is unoccupied, and which is not desired for the use of another. Dunham v. Rackliff, 71 Me. 347; Johnson v. Small, supra; Parker v. Adams, supra; Aston v. Heaven, 2 Esp. 533; Daniels v. Clegg, 28 Mich. 42. Among the definitions of the word “meet” given by Webster are the following: “To come together by an approach from an opposite direction; to come upon or against; to come together by mutual approach; to come...