265 N.W. 143 (Iowa 1936), 43173, Swan v. Dailey-Luce Auto Co.

Docket Nº:43173.
Citation:265 N.W. 143, 221 Iowa 842
Opinion Judge:KINTZINGER, Justice.
Party Name:SWAN v. DAILEY-LUCE AUTO CO. et al.
Attorney:Garrett & Elson and H. B. Bracewell, all of Corydon, for appellant. Murrow & Miles and W. H. Tedrow, all of Corydon, for appellees.
Judge Panel:DONEGAN, C. J., and ALBERT, PARSONS, RICHARDS, and HAMILTON, JJ., concur.
Case Date:February 13, 1936
Court:Supreme Court of Iowa
 
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Page 143

265 N.W. 143 (Iowa 1936)

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

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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...

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