Wheeler v. Peterson
| Decision Date | 16 February 1932 |
| Docket Number | 41179 |
| Citation | 240 N.W. 683,213 Iowa 1239 |
| Parties | GLENN WHEELER, Appellee, v. A. V. PETERSON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--MILES W. NEWBY, Judge.
Action to recover damages to property and injuries to person predicated on the alleged negligence of defendant in operating a motor vehicle at a street intersection in Sioux City, Iowa. Motions for directed verdict were filed by the defendant upon the close of plaintiff's testimony and upon the conclusion of all the testimony, which motions were overruled, and due exceptions were taken. Upon submission to the jury a verdict was returned for the plaintiff and judgment was entered in conformity thereto. The defendant appeals.
Affirmed.
Sam G Pickus and Gleysteen, Purdy & Harper, for appellee.
Baron & Bolton, for appellant.
DE GRAFF, J.
This is an action in tort to recover damages to property and injuries to person under pleaded allegations of negligence on the part of the defendant-appellant in operating a motor vehicle on a paved street in Sioux City, Iowa. The defendant-appellant in his abstract of record states:
"There was such conflict in the testimony as to the alleged acts of negligence on the part of the defendant that the jury, weighing the evidence, might properly have found that defendant was guilty of negligence in operating a motor vehicle in the nighttime at the street intersection in question, and since the appellant intends to rely on errors based upon questions involving contributory negligence on the part of the plaintiff, the appellant will not set out the evidence tending to show or disprove negligence on the part of the defendant."
It appears, therefore, by the foregoing statement that but one question of fact is presented to this court on this appeal, to wit, the claimed contributory negligence on the part of the plaintiff-appellee in driving his motor vehicle at the time and place in question. The record discloses that the trial court overruled the defendant's motion for a directed verdict at the close of plaintiff's testimony, and his renewed motion for directed verdict at the close of all the testimony, to which rulings due exceptions were taken. This resulted in the submission of the cause to the jury, which returned a verdict for the plaintiff-appellee in the sum of $ 2,149.05.
Appellant relies upon certain propositions for a reversal, to wit:
1. The trial court erred in refusing to direct a verdict in defendant's favor at the close of plaintiff's testimony for the reason that, as a matter of law, the uncontroverted testimony discloses that plaintiff was guilty of contributory negligence contributing to his injury and damage.
2. The trial court erred in overruling defendant's motion for directed verdict at the close of all the testimony, for the reason that the uncontroverted testimony discloses that plaintiff was guilty of contributory negligence, as a matter of law, contributing to his injury and damage.
3. The court erred in overruling defendant's motion for directed verdict in favor of defendant at the close of all the testimony, for the reason that the testimony failed to prove defendant guilty of any negligence that was the proximate cause of injury or damage to the plaintiff.
It appears from the record evidence that the collision of plaintiff-appellee's Ford Coupe and the defendant-appellant's truck occurred at about 10:30 P. M., on the night of July 7, 1931; that the collision of said motor vehicles occurred at the intersection of Dace and Howard Streets in Sioux City, Iowa; that the defendant-appellant was driving a large International cattle truck in a northwest direction on Howard Street and across the intersection of the aforesaid streets, the truck approaching the intersection from the southeast. Dace Street was established by the City Council of Sioux City as a "Thru Street," and the ordinance in question provided that every vehicle entering said "Thru Street" from intersecting streets shall come to a full stop before such entrance. Dace Street runs east and west, is paved, and double street car tracks occupy the center of said street, which is 80 feet from curb to curb and 18 feet 9 inches from the most northerly street car track to the north curb. Howard Street intersects Dace Street and runs north and south, and on the southeast corner of this intersection is an oil station, from which the defendant-appellant's truck emerged to enter Howard Street. On the same corner of the intersection near the south curb line of Dace Street and on the east curb line of Howard Street was a "Stop Sign" in black letters on a yellow background, 1 1/2 feet square, extending 4 feet 8 inches from the ground, reading, as a driver approached from the south, "Thru STOP Street." This sign had been there for three years and was quite legible.
The defendant's truck was in the north driveway of the oil station facing west. This driveway curves as it crosses the sidewalk and reaches Howard Street to the northwest, so that the natural route taken by the truck was with the curve to the northwest. Reaching the intersection, the truck traveled diagonally across--"short cut"--6 feet to the west of the center of the intersection. The truck was traveling about 10 miles an hour when first seen, but was gaining speed as it proceeded. The truck made considerable noise, and the plaintiff was asked the question whether he could hear the noise for some distance. He replied that as he looked around to his left because he heard a noise, "The truck was right on top of me." The plaintiff-appellee's hearing was good prior to the accident, and he knew that all vehicles entering Dace Street from Howard Street must stop. Both the Ford Coupe and the truck entered the intersection at the same time, the Ford Coupe traveling west on Dace Street. The right wheel of the Ford Coupe was about 5 feet south of the north curb of Dace Street at the time of the collision.
The defendant-appellant did not stop at...
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