Wymore v. Mahaska Cnty.

Decision Date10 October 1889
Citation43 N.W. 264,78 Iowa 396
PartiesWYMORE v. MAHASKA COUNTY.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Poweshiek county; W. R. LEWIS, Judge.

Plaintiff, as the administrator of the estate of Artemus Smith, deceased, seeks to recover damages resulting from the death of decedent, alleged to have been caused by negligence on the part of defendant. After the evidence had been submitted, the jury were instructed to return a verdict for the defendant, which they did. Judgment was rendered on the verdict, and plaintiff appeals.Bolton & McCoy and G. C. Morgan, for appellant.

John F. Lacey and Blanchard & Preston, for appellee.

ROBINSON, J.

In August, 1883, Henry Smith, with his family, consisting of his wife, a daughter, and plaintiff's intestate, then about two years of age, attempted to drive over a county bridge of defendant in a wagon drawn by two horses. The bridge fell while the team was on it, and the wagon and its occupants fell to the stream below. The fall resulted in the death of the mother and plaintiff's intestate. The plaintiff claims that at the time in question the bridge was out of repair, and in a dangerous condition, and that defendant is chargeable with knowledge of that fact; that it fell in consequence of that condition; and that decedent did not contribute to the injuries of which plaintiff complains.

1. It seems to be conceded, and the record satisfies us, that the jury were instructed to return a verdict for defendant on the ground that the father and mother of decedent were not shown to be free from negligence which contributed to his death. It is not claimed that he could have been guilty of contributory negligence, but it is insisted that negligence on the part of his parents would be imputable to him; hence that it was necessary for plaintiff, in order that he might recover, to show that the negligence of the parents did not contribute to the injury in controversy. So far as we are advised, the question now presented to us has never been directly determined by this court, although it seems to have been assumed in some cases that the negligence of the parent might be imputed to the child. Of that kind is the case of Walters v. Railroad Co., 41 Iowa, 78; but in that it was held that the negligence of the person in whose charge the parents had placed the child could not be imputed to the parent, and through the parent to the child. In Slater v. Railway Co., 71 Iowa, 209, 32 N. W. Rep. 264, the point was expressly reserved from decision. The doctrine of imputable negligence was considered in Nesbit v. Town of Garner, 75 Iowa, 315, 39 N. W. Rep. 516, but the question now under consideration was not involved in that case. That the negligence of the parent is imputable to the child has been affirmed by numerous courts of high standing. See Hartfield v. Roper, 21 Wend. 615;Morrison v. Railway Co., 56 N. Y. 302;Thurber v. Railroad Co., 60 N. Y. 327;Lynch v. Smith, 104 Mass. 53;Gibbons v. Williams, 135 Mass. 335;Fitzgerald v. Railway Co., 29 Minn. 336, 13 N. W. Rep. 168; Brown v. Railway Co., 58 Me. 384; Leslie v. Lewiston, 62 Me. 468; Hathaway v. Railway Co., 46 Ind. 26;Railway Co. v. Grable, 88 Ill. 442; Railroad Co. v. Smith, 28 Kan. 542; Meeks v. Railroad Co., 52 Cal. 603;Stillson v. Railroad Co., 67 Mo. 674. Among the cases holding to the contrary are the following: Railroad Co. v. Snyder, 18 Ohio St. 408;Huff v. Ames, 16 Neb. 139, 19 N. W. Rep. 623;Railway Co. v. Moore, 59 Tex. 64;Railway Co. v. Schuster, 113 Pa. St. 412, 6 Atl. Rep. 269;Robinson v. Cone, 22 Vt. 214; Daley v. Railroad Co., 26 Conn. 591; Railroad Co. v. Ormsby, 27 Grat. 476;Boland v. Railroad Co., 36 Mo. 489;Whirley v. Whiteman, 1 Head, 619; Beach, Contrib. Neg. §§ 41-43. See Battishill v. Humphery, 31 N. W. Rep. 894; 1 Shear. & R. Neg. §§ 70-83, and notes. It seems to us that the authorities last cited announce the better rule. The parent is not in any proper sense the agent of the child. The former is required to give to the latter, care, protection, and support, and in return may exact service and obedience. But these duties are imposed by law and are not the result of any contract between the parties. In this case the child was taken into the wagon, and exposed to the accident which resulted in his death, without volition on his part. He certainly was free from fault. If his parents, by their negligence, contributed to his death, that does not seem to us to be a sufficient reason for denying his estate relief. Such negligence would prevent a recovery by the parents in their own right. Smith v. Railway, 92 Pa. St. 450; Huff v. Ames, 16 Neb. 139, 19 N. W. Rep. 623;Railway Co. v. Snyder, 24 Ohio St. 670; 1 Shear. & R. Neg. § 71; Railway Co. v. Schuster, 113 Pa. St. 412, 6 Atl. Rep. 269; Glassey v. Railway Co., 57 Pa. St. 172. See, also, Albertson v....

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44 cases
  • Scherer v. Schlaberg
    • United States
    • North Dakota Supreme Court
    • September 30, 1909
    ... ... defense. Norfolk Railroad Co. v. Groseclose, 88 Va ... 267, 29 Am. St. Rep. 718; Wymore v. Mahaska County, 43 N.W ...          Negligence ... of one member of a family not ... ...
  • Nashville Lumber Co. v. Busbee
    • United States
    • Arkansas Supreme Court
    • June 5, 1911
    ... ... Westerfield v. Levis , 43 La.Ann. 63, 9 So ... 52 (La.); Wymore v. Mahaska County , 78 Iowa ... 396, 43 N.W. 264; ... [139 S.W. 304] ... Norfolk & W. R ... ...
  • Kokesh v. Price
    • United States
    • Minnesota Supreme Court
    • March 16, 1917
    ...and on that ground contributory negligence of a beneficiary has been held not to bar recovery. Wymore v. Mahaska County, 78 Iowa, 386, 43 N. W. 264,6 L. R. A. 545, 16 Am. St. Rep. 449;Warren v. Street Ry., 70 N. H. 352, 47 Atl. 735;Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S. W. 301,......
  • Kokesh v. Price
    • United States
    • Minnesota Supreme Court
    • March 16, 1917
    ...and on that ground contributory negligence of a beneficiary has been held not to bar recovery. Wymore v. Mahaska County, 78 Iowa, 386, 43 N. W. 264, 6 L.R.A. 545, 16 Am. St. 449; Warren v. Manchester St. Ry. 70 N. H. 352, 47 Atl. 735; Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S. W. 3......
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