Swan v. Dailey-Luce Auto Co.

• Decision Date: 13 February 1936
• Docket Number: 43173.
• Citation: 265 N.W. 143,221 Iowa 842
• Parties: SWAN v. DAILEY-LUCE AUTO CO. et al.
• Court: Iowa Supreme Court

265 N.W. 143

221 Iowa 842

SWAN v. DAILEY-LUCE AUTO CO. et al.

No. 43173.

Supreme Court of Iowa.

February 13, 1936

Appeal from District Court, Wayne County; George A. Johnston, Judge.

Plaintiff appellant, brings this action to recover damages as a result of being struck by defendants' automobile on the night of March 29, 1933. There was a trial to the jury and a verdict and judgment for defendants. Plaintiff appeals.

Reversed.

Garrett & Elson and H. B. Bracewell, all of Corydon, for appellant.

Murrow & Miles and W. H. Tedrow, all of Corydon, for appellees.

KINTZINGER, Justice.

Plaintiff while crossing a street intersection as a pedestrian in the town of Lineville, Iowa, at about 10 o'clock p. m. on March 29, 1933, was struck by an automobile owned by the Dailey-Luce Auto Company and driven by the defendant Howard Dailey in a southerly direction. The allegations of negligence submitted to the jury were substantially as follows: First, that defendant failed to have said car under control and failed to reduce the speed thereof so that the same could be stopped within the assured clear distance ahead; second, that defendant failed to keep a proper lookout for pedestrians who might be traveling on said highway.

The testimony in substance shows that the defendants' driver was proceeding south on highway No. 65, which runs north and south through the town of Lineville; that there is a fork in this highway from the crossing in question forming two streets running east and west from the point where plaintiff was struck. The testimony shows that the driver of the automobile and the plaintiff, the pedestrian, could see each other for a distance of at least 180 feet. The testimony shows that, before plaintiff started to cross the street, he looked in both directions but says he saw nothing. The driver of the car testified that, when he looked south toward the crossing, he saw plaintiff on the east side of the street, and did not see him again until just before he struck him on the crossing. The evidence shows that plaintiff was almost under the floodlights at a filling station located just south of the crossing and in the space between the forks of the roads, where the two branches of No. 65 separate. The defendants' car was properly equipped with headlights and could be seen for a distance of at least 180 feet. There was therefore evidence from which the jury could find that both parties could have seen each other.

The record shows that, when plaintiff reached that part of the center of the crossing just north of the filling station, he suddenly started westerly on a " dog trot" across the street, and that, when crossing, he held his head down and never looked up. He was struck at a point about one step from the west side of the street.

There is testimony to show that, before he started to cross the street, he looked north toward the defendants' car, which was approaching at a speed of about 20 or 25 miles an hour. The speed of defendants' car did not slacken until just about the time it struck plaintiff.

This case was submitted to the jury, which returned a verdict in favor of defendants, and plaintiff appeals.

Mr. Dailey, the driver of defendants' car, testified that, when he was about at the first alley north of the crossing in question, which is 180 feet from the crossing, he saw the plaintiff standing on the crossing immediately north of the filling station on the east side of Main street. The distance across the street from the point where defendants' driver saw plaintiff standing in front of the filling station was 50 feet. The driver also testified that, as he was driving south at that time, he had a plain view of the crossing on which the accident happened. There is a slight bend or angle in highway No. 65 where it starts to fork into Main street. This bend in the highway is 90 feet north of the crossing on which plaintiff was crossing the street. The evidence shows without dispute that from this point in the highway the entire crossing over which plaintiff was walking was within plain view of defendants' driver. The evidence shows that, when the plaintiff reached a point on this crossing 50 feet from the west side of it, he looked both north and south. Plaintiff was a man 77 years of age, and, after so looking, he proceeded to cross to the west side of the street. The evidence shows that he was visible to the defendants' driver when defendants' car was 180 feet from the crossing. There is some testimony tending to show that the entire westerly side of the crossing might not have been visible to defendants' driver at that distance on account of an angle beginning the fork of the road on south into Main street. But the evidence is undisputed that the entire crossing was visible to defendants' driver from the angle in the road to the crossing for a distance of at least 90 feet. The undisputed evidence also shows that the entire crossing could be seen for a distance of 180 feet by the driver of an automobile traveling south on the westerly side of the center line of Highway No. 65. When defendants' driver was 180 feet north of the crossing, he saw plaintiff standing in front of the filling station at a point about 50 feet from the west side of the street. The evidence tends to show that about the time defendants' driver saw him on the crossing 180 feet away the plaintiff started on a " dog trot" westerly across the street, and that, when he reached a point about one step from the west side of the street, he was struck by defendants' car.

Defendants' driver testifies that, after seeing the plaintiff standing in front of the filling station, he never saw him again until he " popped up" in front of his car just before the accident happened. The entire crossing was made plainly visible by electric lights at the filling station, and the driver admitted that he saw plaintiff when his car was 180 feet from the point where plaintiff was standing in front of the filling station. There is nothing in the record in this case tending to show there was anything in the roadway to obstruct defendant's view of plaintiff while the latter was traversing the crossing in question.

I.

Plaintiff contends the court erred in giving instructions Nos. 7 and 8 relating to contributory negligence.

Instruction No. 7 says:

" You are instructed that contributory negligence, as used in these instructions, means in law such negligence on the part of the plaintiff as helped to produce the injury complained of;

And, if the jury find that the plaintiff was guilty of any act of negligence on his part that helped to bring about or produce the injury complained of, then and in that event the plaintiff would not be entitled to recover in this action.

And, in this connection, you are further instructed that the plaintiff must establish by a preponderance of the evidence his freedom from contributory negligence before he would be entitled to recover from the defendants. To establish his right to recover it would not be sufficient to show that the defendant, Howard Dailey, was guilty of negligence and that such negligence was the proximate cause of the injuries of which plaintiff complains, but plaintiff must establish by a preponderance of the evidence his own freedom from contributory negligence before he would be entitled to recover for any damage occasioned to him by reason of any negligence on the part of the defendant, Howard Dailey."

Instruction No. 8 says: " You are instructed that he (plaintiff) was for his own safety bound to use that degree of care and caution that an ordinarily careful and prudent person would have used under the same or similar circumstances. If he did use such care then he was not guilty of contributory negligence. If he did not use that degree of care and caution for his own safety that an ordinarily careful, cautious and prudent person would have used under the same or similar circumstances, then he was guilty of contributory negligence."

It is claimed that the instructions are erroneous because the court nowhere else gives a correct instruction on the subject of contributory negligence, and that these instructions allowed the jury to speculate and consider acts of the plaintiff that were remote and not a proximate cause of the injury, and that, before a recovery by the plaintiff could be defeated, it must be shown that the damages resulting from the injury " must have been a proximate cause of such injury."

In instruction No. 5 the court defines negligence as follows: " Negligence is defined in a general sense as an omission to perform some duty imposed by law for the protection of the person or property of another. * * * Negligence may * * * be defined as the doing of a thing which an ordinarily cautious and prudent man would not have done under the same or similar circumstances, or the not doing of a thing which an ordinarily prudent and cautious man would have done under the same or similar circumstances."

As hereinabove set out, instruction No. 7 tells the jury that contributory negliligence means in law such negligence on the part of the plaintiff as helped to produce the injury complained of.

We think that, when these instructions are construed together, they fairly and correctly instruct the jury upon the question of contributory negligence.

It is the well-settled rule of law in this state that the instructions must be considered as a whole, and if, when so considered, they fairly instruct the jury upon the questions presented, there is no prejudicial error. The instructions as a whole tell the jury in effect that, if the negligence of the plaintiff was a contributing cause to the injury, it will defeat a recovery, although it may not be the proximate cause thereof.

It is the settled rule of...