Roennau v. Whitson
| Decision Date | 20 January 1920 |
| Docket Number | 33067 |
| Citation | 175 N.W. 849,188 Iowa 138 |
| Parties | MARGARET ROENNAU, Appellee, v. DANIEL WHITSON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--EARL PETERS, Judge.
ACTION at law to recover damages for personal injury. Verdict and judgment for plaintiff, and the defendant appeals.
Affirmed.
Tinley Mitchell, Pryor & Ross, for appellant.
W. H Killpack and F. E. Northrop, for appellee.
The plaintiff was injured in a collision upon a public road between a coasting sled on which she was riding and a carriage driven by the defendant. The highway at the point in question extends east and west, and the hill over which it is laid has its ascending slope to the east. At this point, the roadway is narrowed somewhat by a bank or cut on the north, but, as we understand the record, the improved portion of the road is wide enough to readily permit the passage of teams and vehicles meeting there. The hill or slope is quite long, but the coasters do not appear to have been utilizing its entire length. There was a considerable body of snow on the ground, the traveled track had become quite icy, and the descending sleds acquired a high rate of speed. The collision took place in the evening, under circumstances substantially as follows: The coasting party was made up of seven or eight young people, who were making use of one or more small sleds, carrying but one or two riders each, and a so-called "traveler," which consisted of two narrow sleds, coupled tandem fashion, with a plank or board laid lengthwise over them. This vehicle would carry four or more riders. The appellant lived several miles from the place of the accident. He had been over this road a few times, but not in the winter season. On the evening in question, with a covered buggy and team of two horses, he had driven to the house of a neighbor, where his companion, a young woman, joined him for a ride. In the course of their drive, they reached the east and west road first mentioned, some distance west of the foot of the hill, and there turned eastward. It so happened that, about this time, two young men of the coasting party, with plaintiff and another young woman, took the traveler, and went east to the top of the first hill, for the purpose of making a trip down the western slope. They left three younger members of the party at the foot of the hill, with instructions to warn anyone who might chance to be traveling the road eastward, and thus avoid possible collision. The party with the traveler appears to have reached the top, or near the top, of the hill before the defendant and his companion, approaching from the west, were seen or heard by the watchers at the foot. When they were discovered, one of the three watchers ran eastward, shouting to the coasters, thinking he could stop them before they started down; but he was too late, and the party was on its way before the riders could receive the warning. At about the same time, defendant reached the place where the other watchers, a boy and girl, were stationed at the foot of the hill. Both these youngsters testify that each called out to the defendant that a sled was coming down the hill, but he did not heed them, and went on. Defendant and the young woman with him both say they heard the boy and girl call out something, but they did not understand what was said.
It should also be said, with reference to the coasters, that they were loaded on the long and narrow traveler, one young man lying on his face, and managing the steering with his hands, and the other young man either lay or sat on the first, carrying an electric flashlight, pointing forward, while the two young women sat farther to the rear. The meeting took place at a distance not clearly shown to the east of the point where defendant passed the boy and girl. He does not seem to have realized the peril of the situation, until the coasting party was almost upon him. He then reined his team, or the team in its fright swerved of its own motion, to the right; and, as it turned, the "traveler," with its load of coasters, came in contract with a wheel of the carriage. The collision was not fully "head on," but its force was sufficient to break a spoke in the wheel of defendant's carriage and one of the runners on the coasting sled, which was upset, with its load. The defendant paused long enough to check his frightened team, and, after looking back at the coasters, drove on. In this collision, the plaintiff sustained very severe bruises of her person generally, and a comminuted fracture of her left upper arm, near the shoulder. Her injuries were followed by blood poisoning, necessitating somewhat protracted hospital treatment, as well as care, treatment, and nursing in her own home, and a resultant expenditure of considerable labor and expense.
A medical expert, testifying from an examination made at the time of the trial below, says that plaintiff's injuries have left her with only a limited use of her arm. He says the arm is "not nearly as good, and never will be as good as formerly; the deformity is great, and the motion very limited."
The negligence charged against defendant is his alleged carelessness or recklessness in driving on up the hill, after having been warned of the situation by the watchers at the foot of the hill; also by the flashlight carried by the coasters, and the further warning given by their outcries as they started down the slope. Negligence is also charged in defendant's alleged failure to turn to the right sufficiently to allow the coasters to pass in safety. That the boy and girl at the foot of the hill did call out warnings to the defendant is not seriously questioned, but it is claimed for defendant that they were not given in a manner enabling him or his companion to understand their meaning, and that he could not and did not comprehend therefrom that a sled was descending the hill. He admits that, as he proceeded, and before reaching the place of collision, he saw the light. He says, however, that he did not at first realize that the light was moving, and that, as soon as he did discover it to be in motion, he at once sought to turn out of the track; but, before he had fully accomplished his purpose, the "traveler" went quickly by. The persons standing at the foot of the hill say that the light on the traveler was visible from the point of its starting, all the way down, and that the shouts of the riders were continuous and audible. Those on the traveler unite in saying that they shouted an alarm to "clear the way," or words to that effect, from the time their descent began, and that the light was pointed forward, though, as we infer, with a downward slant, to illuminate the path for the benefit of the steerer. The traveler was a narrow contrivance, the sleds and the connecting plank being only about 12 or 15 inches, at most, in width. The trodden or icy path in the road had been broken and worn to some extent by auto cars, and the riders on this last unfortunate trip say that the traveler was kept with its right runner in the right-hand auto track, as they went down the hill.
While the foregoing is not a full statement of the testimony, we have mentioned enough to illustrate the tendency and general effect of the showing made by the contending parties. At the close of the evidence in chief for the plaintiff, defendant moved for a directed verdict in his favor, on grounds the substance of which is:
(1) That there was no evidence to support a finding of negligence on part of the defendant; and
(2) That plaintiff shows herself chargeable with contributory negligence, as a matter of law.
The motion having been denied, the defendant introduced his evidence, and thereafter renewed his motion for a directed verdict. This also was denied. The jury returned a verdict for plaintiff for $ 2,286. Defendant appeals.
I. Appellant's principal reliance for a reversal of the judgment below is upon the two propositions assigned by him for a directed verdict: the insufficiency of the evidence to support a finding of negligence on his part, and the conclusiveness of the showing of plaintiff's own negligence.
While not in terms denying the lawfulness of the use of a country highway for coasting purposes under ordinary circumstances appellant's argument, in many of its assumptions and inferences, seems grounded on the thought that, as between the defendant, driving an ordinary wheeled carriage, drawn by horses, and the party of coasters, moving over the same public road on a sled propelled by their own weight, the superiority of right is with the former. "Surely," say counsel, "the defendant had a right to drive up the hill in the beaten or traveled way upon this public road." This may be conceded; but it by no means answers or avoids the plaintiff's complaint if, as a matter of law, she was also clothed with a like right to come down the hill "in the beaten or traveled way." The right which any person has to use the public road in going from place to place is a right which he holds in common, as one of the public. Each and every person exercising a common or public right is bound to do so with reasonable regard to the safety of others lawfully claiming a like privilege. So far as the highway is concerned, the law recognizes no favorites in its use. The titled traveler, with his "coach and six" and outriders, has no higher or better right in the public road than has the patient squaw, with her pony, dragging the primitive travois which bears her load of blankets. And, barring only the reservation that the vehicle shall not be a kind destructive of the public use of the road, or otherwise constituting a...
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