McGee v. Jones County

161 Iowa 296
CourtSupreme Court of Iowa
DecidedSeptember 16, 1913
StatusPublished
Cited by16 cases

This text of 161 Iowa 296 (McGee v. Jones County) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGee v. Jones County, 161 Iowa 296 (iowa 1913).

Opinion

Ladd, J.

About forty years ago, Jones county constructed an iron bridge near Monticello, over Maquoketa river. It was eleven or twelve feet above water and about six feet higher than the surface of the banks. It rested on stone abutments on either end, and at the south retaining walls extended from the abutment sixteen- feet on one side and twenty feet on the other holding the earth of the approach. The rise from the level of the road to the bridge was gradual, and a cement apron at the edge carried vehicles on the bridge without a jar. The iron girder on each side of the bridge [298]*298begins at tbe abutment some eighteen inches below the plank floor and curves upward and over to the other end. On this .there was a hub rail about two and one-half feet from the floor, but, owing to the curve in the girder, its south end begins about seven feet north of the edge of the bridge. Aside from this hub rail and girder, there were no guards, and the approach was without railing or other barrier to prevent travelers from going off the bridge or approach. In the morning of January 10, 1911, shortly after 8:30 o’clock, the plaintiff left Montieello by way of this bridge for a load of wood. He was driving a blind horse about twenty years old, hitched to a one-horse wagon on which there was a wood rack. He testified that he was driving along the center of the highway in a northerly direction with lines in one hand and with the other on a stake of the rack, and when near Skelly’s gate, about twelve rods south of the bridge, suddenly lost consciousness and did not regain it until discovered by those passing on the ice of the river where he was lying some ten or twelve feet out from the bridge and the same distance from the shore. The horse was on the ice near the southeast corner of the bridge, as was also the wagon. The petition alleged that the county had been negligent in two respects: (1) Failing to protect travelers by the construction of guard rails or barriers along the sides of the bridge and approaches, and (2) by reason of the bridge and the approach being less than sixteen feet in width, and that plaintiff was without fault in the matter.

1. Highways : bridges: unguarded aptrü)utoryCne’gligence. I. It cannot be said as a matter of law that plaintiff was guilty of contributory negligence. He had not previously fainted for forty years save once, and then from loss of blood. He had no premonition that he was about to faint away and cannot be said to have been v more likely suddenly to lose consciousness than other men.. He was not bound, then, in the exercise of ordinary prudence, to anticipate such a condition; nor can it be said that the jury should have reached [299]*299the conclusion that plaintiff merely fell asleep, as against his uncontradicted statement that he did not, but suddenly fainted. He was driving a horse which was blind.

2. Same. It was undisputed, however, that the horse was gentle, and he cannot be said as a matter of law to have been careless in undertaking to drive such a horse on the highway. Cutting v. Inhabitants of Shelburne, 193 Mass. 1 (78 N. E. 752) ; Breckenridge v. Fitchburg, 145 Mass. 160 (13 N. E. 457). Indeed, such a horse may be quite as tractable as though it could see, and the absence of sight is only a circumstance to be considered in determining whether plaintiff was negligent in undertaking to drive along an .approach and bridge in the condition they were shown to be. Of course, he was aware that there were no barriers or guard rails; but, even though the county may have been negligent in not providing these, this did not preclude the use of the bridge by him if as an ordinarily prudent person he believed and had the right to believe he could drive his horse over the same safely. Reynolds v. City of Centerville, 151 Iowa, 19; Harvey v. Clarinda, 111 Iowa, 528; Sylvester v. Casey, 110 Iowa, 256; Wand v. Polk County, 88 Iowa, 617; Walker v. Decatur County, 67 Iowa, 307; Morgan v. Dallas County, 103 Iowa, 57. The jury might well have found from the evidence that the plaintiff was in no wise responsible for his helpless condition and that he was without fault in any way contributing to his injuries.

3. Same : bridges: unguarded approach. II. It is conceded that the issue as to whether defendant, in failing to provide barriers or guard rails for the bridge and approach, was negligent, was for the jury to determine. An approach to a bridge essential to enable persons on the highway to reach the main structure and without which the main structure would be incomplete constitutes a part of the bridge. Eginoire v. Union County, 112 Iowa, 558. The approach here might have been found and was conceded to be a part of the bridge where the horse and wagon with plaintiff pre[300]*300cipitated to the ice in consequence of the want of barriers or guard rails to the bridge or approach. There was no direct evidence upon which to base such a conclusion, nor was this necessary. If the circumstances proven were such as to render this reasonably probable and more probable than that ib happened owing to some other cause, the jury was justified in so finding. O’Connor v. Railway, 129 Iowa, 636; Ruggard v. Refining Co., 132 Iowa, 724; Lunde v. Cudahy Packing Co., 139 Iowa, 688; Brown v. Coal Co., 143 Iowa, 662.

The horse was old, blind, and gentle, and was being driven in the direction of the bridge when plaintiff fainted. It would likely continue in the same direction upon loss of consciousness by plaintiff, of which it would not be informed, and likely walked on until it fell from the bridge or approach to the ice. TIow else did it get there ? But would this have happened had the road been supplied with barriers? This and other courts have found little difficulty in sustaining findings that suitable barriers in like situations would turn a horse or team when beyond control because'of fright. How then can it be said that these, if provided the bridge and approach, would not likely have turned this gentle twenty-year old slowly moving blind horse ? Surely the evidence was such as to carry this issue to the jury.

4. same: negligence: proximate cause III. Assuming then that the horse walked off the bridge or approach because of the negligence of the county in failing to provide these with barriers thereby causing the injury, was such negligence the proximate cause of such injury ? Appellant contends this was in consequence of the blindness of the horse in connection with the loss of consciousness on the part of plaintiff, and for this reason the jury should have been directed to return a verdict for the defendant. There are decisions sustaining this view, but the rule has been otherwise in this state for more than forty years and is sustained by the great weight of authority. Manderschid v. City of Dubuque, 25 Iowa, 108; Byerly v. City of Anamosa, 79 Iowa, 204; Nocks [301]*301v. Incorporated Town of Whiting, 126 Iowa, 405; Overhowser v. Americcm Cereal Co., 118 Iowa, 417. The decisions pro and con will be found collected in a note to Schaeffer v. Jackson Township, 18 L. R. A. 100.

The question has generally turned on whether the fright of a horse or a defect in the highway is the proximate cause, where the horse because of such fright has escaped the control of the driver and it or those in the vehicle have been injured on account of such defect.

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Bluebook (online)
161 Iowa 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgee-v-jones-county-iowa-1913.