Young v. Madison County

• Decision Date: 19 February 1908
• Citation: Young v. Madison County, 115 N.W. 23, 137 Iowa 515 (Iowa 1908)
• Parties: N. J. YOUNG, Appellant, v. MADISON COUNTY, IOWA, Appellee
• Court: Iowa Supreme Court

115 N.W. 23

137 Iowa 515

N. J. YOUNG, Appellant, v. MADISON COUNTY, IOWA, Appellee

Supreme Court of Iowa, Des Moines

February 19, 1908

Appeal from Madison District Court.--HON. EDMUND NICHOLS, Judge.

DEMURRER to petition sustained, and plaintiff appeals.

Reversed.

J. P Steele, for appellant.

Leo Percival, County Attorney, for appellee.

OPINION

WEAVER, J.

The plaintiff alleges that she was the owner of a threshing machine and engine which were being moved by her agents and employes along a public highway in Madison county, upon which highway the county had erected and was maintaining a bridge and that on reaching the bridge the parties in charge of the outfit examined the structure, and, believing it to be safe proceeded to move the engine across. To accomplish this they detached the engine from the rest of the outfit and undertook to pull it over the bridge with a team of horses, the traction being applied by means of a cable or rope extending from the engine on one side of the stream to the horses on the opposite side. When the engine was about midway in the passage the bridge broke down, causing the injury complained of. Negligence of the defendant is charged in the original construction of the bridge, as well as in its maintenance. The other allegations of the petition are formal, and need not be more particularly stated. The demurrer to this petition is based on the following grounds: (1) That the petition fails to show any compliance by plaintiff with the statute (Code, section 1571), which requires one who operates a traction engine over or across a bridge on a public highway to strengthen such structure by laying down extra planks; and (2) that plaintiff affirmatively shows contributory negligence on her part.

I. The statute to which reference has been made reads as follows: "Whenever any engine driven in whole or in part by steam power is being propelled upon a public highway, or is upon the same, the whistle thereof shall not be blown, and those having it in charge shall stop one hundred yards distant from any person or persons with horses or other stock in or upon the same, and at a greater distance away if they exhibit fear on account thereof until they have passed it, and a competent person shall be kept one hundred yards in advance of such engine and assist in any emergency arising from frightened animals and to prevent accidents. In crossing any bridge or culvert in the public road or plank street crossings in any city or town four sound strong planks not less than twelve feet long each one foot wide and two inches thick shall be used by placing and keeping continuously two of them under the wheels." Code, section 1571. We have then to inquire whether this statute has any application to a case where the engine is being hauled by animal power and is not being propelled in whole or in part by steam or other mechanical power.

It is the contention of the appellee that the words "driven in whole or in part by steam power" are descriptive of the kind of an engine to which the statute applies, and have no reference to the manner in which it is being operated or moved along the highway. After considerable reflection we are unable to agree with this construction of the...