The opinion
Miller, J.
(dissenting) — I am unable to agree with the holding of the majority herein and respectfully dissent.
The result of the decision herein is that a motorist, who finds in front of him a farmer leading an animal along the highway, can proceed only at his peril. We have repeatedly held that, if a motorist makes unnecessary noises and frightens the animal, he is liable in damages for such wrongful conduct. If the defendant in this case had sounded his horn to warn the farmer of his approach and the horn had frightened the cow, then the defendant would have been liable for sounding his horn. This opinion now holds that lie is also liable for not sounding his horn, even though in all other particulars he proceeded with exceedingly conscientious care to avoid injury to the farmer or the cow. Much a result seems to me contrary to our former pronouncements.
The majority opinion relies upon the case of Delfs v. Dunshee, 143 Iowa 381 , 122 N. W. 236 . However, examination of
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that decision reveals that, in that case, the motorist passed in very close proximity with a horse-drawn vehicle and then stopped in front of the horse. The opinion clearly suggests that had the motor vehicle passed on the other side of the street there would have been no occasion for giving warning of its approach. Here the defendant pulled well over onto the north side of the road, gave ample clearance, slowed down to five miles an hour, after the plaintiff had looked to his rear and had pulled over well onto the south side of the road. Under these circumstances, sounding of the horn might well have been made the basis for a claim of negligence had the cow become frightened. To now say that failure to sound the horn also imposed liability on the defendant places a motorist in a perilous position which the law should not inflict upon him.
This is not a case of a collision between the vehicle and someone on the highway, as in the Louisiana case, upon which the majority place great reliance. Here there, was no contact between the automobile and the plaintiff or his cow. Defendant carefully avoided any collision. The only basis for liability is that, while passing the cow in a very careful manner at five miles an hour, the cow became frightened because the defendant had not sounded his. horn. I cannot subscribe to the imposition of liability on any such basis.
In the case of House v. Cramer, 134 Iowa 374, 376, 377 , 112 N. W. 3 , 10 L. R. A., N. S., 655, 13 Ann. Cas. 461, this court states:
“The right to make use of an automobile as a vehicle of travel along the highways of the State, is no longer an open question. Chapter 53, Acts 30th General Assembly (Laws 1904). The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling by some other vehicle. * * Of course, noises incident to the operation of the machine are not, of themselves, negligent.”
Again, in the case of Buchanan v. Hurd Creamery Co., 215 Iowa 415, 420, 421 , 246 N.
W.
41, 44 , this court states:
“It is also true that the rights of a driver of a, horse or team attached to a buggy or carriage are not superior to the rights of the driver of an automobile or truck. * * * It must be conceded
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that the mere operation of an automobile upon the highway in the usual, ordinary and customary way is not negligence. * * * the making or permitting of unusual or unnecessary noises while the motor vehicle is being operated in the vicinity of horses, which might reasonably be expected to frighten an ordinary horse, is sufficient to justify a finding by the jury that the operator of the motor vehicle was negligent and to impose liability for resultant injury.”
The foregoing decisions recognize that a motorist has the same right on the highway as a domestic animal, and, if the animal becomes frightened from the usual operation of the vehicle, the motorist is not liable on account thereof but may be liable if unusual or unnecessary noises frighten an animal on the highway. Such being the law, how can we say that defendant was under obligation to sound his horn when the very sounding of it might have frightened the cow?
In the case of Cresswell v. Wainwright, 154 Iowa 167, 184 , 134 N. W. 594, 600 , this court states:
‘‘Under the circumstances, indicating that, if the team was frightened at all by the approach of the automobile, it was fi iglitened in a way not to have been reasonably anticipated, either by plaintiff or by defendant, the sounding of the horn might in itself have constituted negligence; but, in any event, a failure to sound the horn could not have been the occasion of the fright of thedearn.”
It seems to me that the facts in this case would warrant the same pronouncement which was made in the case of Simmons v. Lewis, 146 Iowa 316, 319 , 125 N. W. 194 , 195, 196, as follows:
“Assuming the law to be well settled by our decisions that one operating an automobile has the same right in the street as the driver of horses and is liable for a resulting accident only where he fails to use the degree of care as to the speed and management of his machine which the circumstances reasonably require (House v. Cramer, 134 Iowa, 374 ; Delfs v. Dunshee, 143 Iowa, 381 ) we are unable to see anything in this record which would justify a finding of negligence. The automobile was being operated at a low rate of speed, little if any greater at the time of
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the accident than that of the teams moving in front of it. The noise produced was greater than that of an automobile running on high gear, but not greater than that usually produced by a one-cylinder car running at low gear. There was nothing in the appearance of the automobile specially calculated to frighten horses. It was like ordinary automobiles in its appearance. No warning had been given that the Krause team -was frightened or likely to be frightened by the approach of the machine. There is no evidence that the operator of the machine had any reason to suppose from the appearance of the Krause team that it was likely to become frightened and uncontrollable on the near approach of the machine. After the horses manifested fright, nothing could have been done by the operator of the machine, to avoid the accident, for it happened instantly, and the horses were in a few seconds free from the vehicle and dashing along the street. It will not do to say that the machine ought not to have been run on the street at all at. the time, for there was no such congestion as to render it negligent on the part of the operator to proceed with due care tOAvard the Fair G-rounds. The operator did not run into a crowd, nor, so far as it appears, manifest any intention of proceeding save in a careful and prudent manner in A'iew of the circumstances surrounding her. ’ ’
In the case of Gipe v. Lynch, 155 Iowa 627, 632 , 136 N. W. 714, 716 , the language would seem to be applicable to the record herein, wherein we state:
‘ ‘ There AA'as no evidence tending to sIioaa any other loud and sudden noise than that produced by the engine of defendant’s automobile in being allowed to run AAhile the machine Avas standing still at the side of the road, and the court therefore properly refused to submit to the jury any question in regard to the alleged negligence of the defendant in allowing or causing his aritomobile to make Avithout warning a loud and sudden noise upon the highway, in the absence of anything in the evidence to indicate that defendant observed or in the exercise of ordinary care ought to have observed that the noise of the engine was frightening the plaintiff’s horse and might have stopped the explosions of his engine in time to have avoided the accident AA'hich resulted from such fright. There is nothing Avhatever to
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indicate that plaintiff's horse was frightened until he was besule the automobile and in the act of passing it, and defendant could not therefore have observed any danger, that the horse would be frightened by allowing- his engine to run, in time to have avoided such danger. It "was not in-itself negligence on the part of defendant to allow7 his engine to run -while his machine was standing still for a temporary purpose by the highway. House v. Cramer, 134 Iowa, 374 .”
In Gearhart v. Stouder, 161 Iowa 644, 646 , 143 N. W. 499 , we held that we were unable to find in the record a scintilla of evidence of negligence of the defendants. I would make the same pronouncement under this record.
In the case of Stewart v. Wild, 196 Iowa 678, 684 , 195 N. W. 266 , Judge Evans points out very forcefully how unpredictable is the conduct of an animal on the highway. Such habits are recognized there by judicial notice. The same is true here. The defendant certainly should not be required, as a condition precedent to his right to travel on the highway in an automobile, to forecast and predict at his peril the habits of a cow proceeding on the highway before him. As defendant approached this cow he was driving about twenty miles an hour. He slowed down to five miles an hour and pulled well over onto the opposite side of the road to avoid any possibility of colliding with the cow, whatever its unpredictable conduct might be. Had he sounded his horn and frightened the cow, under the pronouncements above quoted, liability would have fastened upon him. To now say that if he fails to sound his horn, and the cow, doing that which no one can predict, becomes frightened, merely by reason of the fact that the automobile undertakes to pass slowdy by on the other side of the road, giving all the leeway it can, the defendant must still have a substantial liability imposed upon him for so operating his automobile, deprives the defendant of his equal right to use the highway and makes the right of the owner of the cow so superior to that of the motorist that about the only safe way to proceed is by a detour off the highway. I Avould affirm.