Taylor v. Wabash Railway Co. , 112 Iowa 157 ( 1900 )

Waterman, J.

Two principal grounds of complaint are presented: (1) That defendant was not permitted to introduce evidence showing that the city had removed the piles driven to divert travel from under the bolts or rods that injured plaintiff; and (2) that plaintiff is shown to have been guilty of negligence. We take these matters up in their order.

2 It is virtually conceded that travel under the center of the bridge was always obstructed by these bolts hanging down from above, for in 1881 piles were driven to divert it to either side. The original construction, then, or the condition in which it was. permitted for many years to remain, ivas negligent; for travelers were entitled to the use of the whole roadway which was open for travel. Crystal v. City of Des Moines, 65 Iowa, 502. There is no charge that the acts alleged to have been done by the city, or with its assent, were such as it had no right to do. Under these circumstances, we cannot see how such acts could in any way affect the liability of defendant in the action. The only matters we have to consider in this connection are whether defendant was negligent, and tliis negligence caused, or aided in causing, the injury to plaintiff. Pratt v. Railway Co., 107 Iowa, 287; Gould v. Schermer, 101 Iowa, 582. These questions were properly submitted to the jury.

8 II. It is strenuously insisted that plaintiff was guilty of contributory negligence. The circumstances of the accident, briefly stated, are as follows: Plaintiff was familiar with the condition of the bridge, having driven under it frequently before he was hurt. On the occasion in question, lie was going to town for a load of swill, lie had only dump boards on the running gear of his wagon, with two barrels thereon. Plaintiff was standing beside the barrels as he approached the bridge. Just as the bridge was reached, a gust of wind lifted his hat from his head, the team meanwhile proceeding. Plaintiff stooped and recovered his hat, which had fallen upon the wagon, but, unnoticed by him, his team had swerved to-the center of the roadway, and as plaintiff raised up, not realizing he was under the projecting bolt, his head struck it, and inflicted the injury for which he sues. There can be no dispute as to the general rule of law governing plaintiff’s conduct. The bolt was in .plain sight. lie knew of its existence and condition, and it was Ms duty to use reasonable care in driving so as to avoid it. But, in determining tbe question wlietbor be did exercise sucb care, all tbe facts must be considered, and it might well be said that tbe circumstances were such as to throw him off bis guard, and excuse him for acting as be did. Tbe question presented was clearly for the jury. Laverenz v. Railroad Co., 56 Iowa, 689; Artz v. Railway Co., 34 Iowa, 153; Ross v. City of Davenport, 66 Iowa, 548; Mathews v. City of Cedar Rapids, 80 Iowa, 459.

4 III. Tbe court submitted this special finding to tbe jury: “Do you find that plaintiff was in tbe exercise of ordinary care and caution at tbe time be was injured?” The answer returned was, “Yes.” It is claimed there was error in submitting this interrogatory, because it called for a legal conclusion, and not .a fact. If this be true, there was certainly no prejudice, for tbe finding necessarb/ inheres in tbe general verdict. If the answer to this interrogatory is discarded, tbe verdict in plaintiff’s favor will be in no wise affected. Defendant relies upon tbe case of Home Ins. Co. v. Northwestern Packet Co., 32 Iowa, 223, to sustain bis demand for a reversal on this point. In that case we held there was no error on tbe part of the trial court in refusing to submit an interrogatory calling for a conclusion from many facts; but there is a manifest distinction between bolding that tbe trial court might have refused to submit sucb a question and that there was prejudicial error in so submitting it. If the interrogatory was improperly given tbe jury to answer, tbe procedure resulted in no conceivable barm to defendant. — Appiemed.

Granger, O. J., not sitting.