Streeter v. City of Marshalltown

Ladd, J. [450] i. streets: negligence. [449] On the 8th day of November, 1901, at about 7:30 o’clock p. m., the plaintiff was driving a horse, hitched to a light, two-wheeled cart, along the north side of Linn street (or, as some witnesses say, on the south side), in the defendant city, in a westerly direction. When about two rods from the intersection with Seventh avenue, he heard or saw a hose cart coming at full speed on said avenue, and [450] turn the corner clown Linn street, on its way to a fire on Eighth street. He testified: “As' soon as it turned the corner, it was coming toward me, and so I went across the street to get away from it. I think it was coming at about a four-minute clip; anyway. I crossed the ridge in the street to the south. As I crossed the ridge in the street I felt the left wheel go up, and when it went down on the other side of the ridge the other wheel went up, and I was thrown out of my cart, and struck the side of the gutter on my left side.” Linn street is sixty feet wide, of which six feet on each side is used for sidewalks, and from eight to ten feet on each side for parking, leaving a strip about thirty-two feet wide for travel by vehicles. Along the center of the street, from Fourth to Eighth avenues, a sewer had been placed, shortly before; and, in filling the excavation, a ridge of dirt had been left, variously estimated by the witnesses, though the jury might have found the top of it sixteen illches above the ordinary contour of the street, and the bottom only four or five feet wide. No argument is required to show that in leaving such an obstruction in the center of a well traveled street, with no signals of warning, the city may have been negligent. We do not understand appellant to question this, but to insist that plaintiff was conclusively shown to have been at fault. But this is not so. True, he was driving on the right side of the street, as the city ordinance required, aad thereunder it was the duty of vehicles coming from the opposite direction to take the other side. But this ordinance did not prevent any one from crossing the street to avoid danger. That plaintiff apprehended this from the appproach of the hose cart, there can be no doubt. The . appellant insists, however, that he ought to have known better, and especially that the cart would take the south side of the street, and leave him unmolested, as it was =: negligence, coming from the west, and could not make a short turn, but must necessarily have gone across the street diagonally, as it did. A sufficient answer is that persons in [451] such, an emergency are not required to make nice calculations of what course others may pursue. It was dark, or nearly so, and the hose cart was coming rapidly toward him. Had he continued on the same side of the street and been injured, doubtless it would have been contended that he was negligent in not driving out of the way. He succeeded in eluding the cart, and whether he was at any fault in the way he accomplished this was a fair question for the jury to decide. 3. new trial: misconduct. II. Misconduct of counsel is complained of: (1) In that a witness who testified that wagons passed over the ridge freely was asked on cross-examination if he had seen one Johnson’s wagon fall over, and him thrown out and injured; (2) in that counsel inquired of another witnesss of defendant if he had talked with its attorney, of the case, frequently; and (3) because of improper remarks to the jury. Evidence of other similar accidents was not admissible, and, of course, counsel had no right to inject intimations' there-0£ recor(j_ When this is done with the object of leading the jury to infer something that may not be proven, and results in prejudicing the other party, the court will not hesitate to grant a new trial on this ground alone. Attempts by intimation or insinuation to get improper matters before the jury should be promptly suppressed. It is not enough that objections be sustained. The objectionable questions should be prohibited. But improper inquiries are often made in good faith, and others are usually without prejudice. It is exceedingly difficult for an appellate court to determine the eifeet of miscbnduct of this character, especially when but feAV such questions have been propounded, and, of necessity, the conclusion of the trial court is ordinarily to be regarded as conclusive. We cannot say from the record before us that there was error in holding that no prejudice resulted from making the improper inquiries. [452] 4 argument-misconduct, [451] As to the other points, it is to be said that a careful lawyer usually consults the witnesses to be called in behalf of his [452] client before placing them on the stand, but it does not follow adversary -may not inquire whether they have conversed concerning the case, and to what extent, with counsel. No exception was taken to anything said in the argument to the jury at the time, nor was the court then given the opportunity to correct the error, if airy. Under such circumstances, unless prejudice clearly appears, as it does not in this case, we will not interfere. Gorham v. Sioux City Stockyards Co., 118 Iowa, 750.-Affirmed.