Streeter v. City of Marshalltown

• Decision Date: 06 April 1904
• Citation: 99 N.W. 114,123 Iowa 449
• Parties: E. R. STREETER v. CITY OF MARSHALLTOWN, Appellant
• Court: Iowa Supreme Court

99 N.W. 114

123 Iowa 449

E. R. STREETER v. CITY OF MARSHALLTOWN, Appellant

Supreme Court of Iowa, Des Moines

April 6, 1904

Appeal from Marshall District Court.--HON. OBED CASWELL, Judge.

ACTION for damages, in which judgment was recovered. The defendant appeals.

Affirmed.

C. H Van Law for appellant.

J. M Whitaker and J. M. Parker for appellees.

OPINION

LADD J.

On the 8th day of November, 1901, at about 7:30 o'clock p. m., the plaintiff was driving a horse, hitched to a light, two-wheeled cart, along the north side of Linn street (or, as some witnesses say, on the south side), in the defendant city, in a westerly direction. When about two rods from the intersection with Seventh avenue, he heard or saw a hose cart coming at full speed on said avenue, and turn the corner down Linn street, on its way to a fire on Eighth street. He testified: "As soon as it turned the corner, it was coming toward me, and so I went across the street to get away from it. I think it was coming at about a four-minute clip, anyway. I crossed the ridge in the street to the south. As I crossed the ridge in the street I felt the left wheel go up, and when it went down on the other side of the ridge the other wheel went up, and I was thrown out of my cart, and struck the side of the gutter on my left side." Linn street is sixty feet wide, of which six feet on each side is used for sidewalks, and from eight to ten feet on each side for parking, leaving a strip about thirty-two feet wide for travel by vehicles. Along the center of the street, from Fourth to Eighth avenues, a sewer had been placed, shortly before; and, in filling the excavation, a ridge of dirt had been left, variously estimated by the witnesses, though the jury might have found the top of it sixteen inches above the ordinary contour of the street, and the bottom only four or five feet wide. No argument is required to show that in leaving such an obstruction in the center of a well traveled street, with no signals of warning, the city may have been negligent. We do not understand appellant to question this, but to insist that plaintiff was conclusively shown to have been at fault. But this is not so. True, he was driving on the right side of the street, as the city ordinance required, and thereunder it was the duty of vehicles coming from the opposite direction to take the other side. But this ordinance did not prevent any one from crossing the street to avoid danger. That plaintiff apprehended this from the approach of the hose cart, there can be no doubt.

The appellant insists, however, that he ought to have known better, and especially that the cart would take the south side of the street, and leave him unmolested, as it...