Morgan v. Dallas County

Ladd, J. 1 It is insisted that the plaintiff and her husband were guilty of contributory negligence, and, for this reason, ought not to recover. The bridge is over the ’Ooon river, about one and one-half miles southwest of Perry, and is sixty-five or seventy feet long, with iron guard rails. Next to 'the bridge is a plankway, with wooden railing, and, beyond this, an approach, constructed by erecting a crib, and filling it with earth, about six feet above the surface. This approach had no barriers whatever, and from it the horse shied, and occasioned the accident. • Under the bridge was a ford, the water being about one foot deep, ■or, as said by one witness, it came up to the hub of the wagons. In going to the south, as Morgan did, the way was on the east side of the approach, under the [59] bridge, -and out on the west side. In going into the river, the ground was level-to- the north, but there was a steep bank on the south side, making it. somewhat •difficult to get out. As Morgan knew the approach was without barriers, it is said he ought to have driven by way of the ford, instead of over the bridge. Homan v. Franklin County, 98 Iowa, 692, is relied on. In that case the defect in the bridge was such as might occasion injury without any other co-operating cause, such as to render it dangerous however used. It was shaky, and not properly braced from below. Here the approach might be used with impunity by those to whom the want of barriers was not a source of danger. The greater portion of the travelers, went over the bridge, instead of through the river. Morgan had driven this very horse over it many times without harm. The approach was as ’constructed, -and open to the public use. Under the circumstances, Morgan might well hesitate whether he would brook the dangers of the ford or those of the unguarded approach. In deciding, he was required to exercise that degree of prudence an ordinarily cautious man would under like circumstances-. .Whether he so did, was properly left to the ji-ry. Walker v. Decatur County, 67 Iowa, 307; Waud v. Folk County, 88 Iowa, 617. 2 II. The first instruction asked- by the defendant was properly refused, because it assumed that the way by the ford- was- safe and convenient. It cannot be s-a.’d that driving across a stream -sixty-five feet wide, with wife and small child, in the buggy, the water hub -deep, and a difficult ascent on the further-side, would have been entirely free-from danger. The ninth instruction given by the court called attention to the way by the ford, and -submitted the question .whether Morgan was negligent in going over the bridge. It is not as specific as- could have been-desired, but must have been- understood by the jury -as indicating that [60] Morgan was required to choose between the two ways, acting as an ordinarily cautious man in so doing. 3 III. It is said there is no evidence to support that part of -the tenth instruction permitting the jury to allow as damages “reasonable compensation for the care of the child occasioned by the injury.” The plaintiff testified to the value of her time, and also the care given the child. This furn'shed a basis from which to fix such compensation. 4 IY. Morgan was allowed to testify, over the obj ection of the defendant, that, if there had been a guard rail along the approach, the accident would not have occurred. This was a conclusion of the witness, and improperly received. He spoke kis.opinior, only. It was without prejudice, however, as • every juror knew, as well as the witness, that, if there had been a barrier sufficiently strong, the horse could not have gone through it. The evidence bearing on the character of the horse was in conflict, and rightly left for the consideration of the jury in passing on the issues raised by the pleadings. — Affirmed. ‘