Altfilisch v. Wessel
| Decision Date | 24 June 1929 |
| Docket Number | 39303 |
| Citation | 225 N.W. 862,208 Iowa 361 |
| Parties | MARGARET ALTFILISCH, Appellee, v. HARVEY WESSEL et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Scott District Court.--A. P. BARKER, Judge.
Action at law, to recover damages for personal injuries suffered by the plaintiff in a collision with a Ford automobile driven by Harvey Wessel and owned by his father, Fred C. Wessel, both of whom are made defendants. There was a verdict and judgment for the plaintiff, and the defendants appeal.
Affirmed.
Chamberlin & Chamberlin and Bollinger & Block, for appellants.
M. F Donegan, for appellee.
I Garfield Street, in the city of Davenport, lies east and west, and intersects with, but does not extend farther east than, Brady Street, which lies in a somewhat northeasterly and southwesterly direction. On the evening of March 6, 1926, appellee, Margaret Altfilisch, while in the act of crossing Brady Street to the east from the northwest corner of the intersection, was struck by a Ford automobile driven by Harvey Wessel, knocked to the pavement, and permanently injured.
As one of the principal points urged by appellants is that the evidence wholly failed to establish any of the grounds of negligence alleged in the petition, it is necessary that a detailed statement of the record be made. The accident occurred, according to the testimony of appellee, sometime after 6 P. M., and, according to the testimony of the appellant Harvey Wessel and a young lady riding with him, about 7:30. No one testified to the exact time.
Both appellant Harvey Wessel and appellee testified that a street car going south passed the intersection on Brady Street immediately preceding the accident. The driver of the car testified that he stopped at the curb line on the south side of Garfield Street, to wait for the street car, which did not stop at the intersection, to pass; that he then started the automobile, entered Brady Street, and turned on the east side thereof, to go north; that, just as he straightened the car to proceed, he struck a dark object, which he had not previously seen, and stopped the car. This he testified was accomplished in a distance of five or six feet. Appellee testified that she saw the street car; that she stood a few seconds on the sidewalk at the northwest corner of the intersection; that she looked up and down the street, and saw nothing until the appellant's car was close to her; that she then hurriedly went a couple of steps farther east, when she was struck and knocked down, as stated. She testified that the automobile had not completed the turn when she was struck. The evidence tended to show that she crossed Brady Street at right angles.
There is a dispute in the evidence as to the condition of the weather. All agree that a mist had been falling, and appellee and other witnesses residing near by testified that the mist had changed to snow, and that the street was white. Appellant denied that it was snowing. He also testified that the lights on his car were in good condition and shining brightly. He did not see appellee until the car struck her. There is a street light at the intersection, which, according to the testimony of the witnesses for appellee, was shining at the time of the accident. Appellee testified that appellant told her, immediately after the accident, that he did not see her because his wind shield was covered with rain and snow.
Laura Kuehl, another witness for appellee, testified that she went with the driver of the car and his companion, Helen Cleaver, from the scene of the accident directly to the home of appellee; that, on the way, the driver stated that "it was snowing and raining, and hard to see through the wind shield; that he did not know what he had hit, as his wind shield was full of snow and rain." These statements are denied by appellant and Miss Cleaver.
One of the claims of appellants is that appellee was attempting to cross Brady Street at an angle, in violation of a city ordinance, and that she was guilty of contributory negligence. The driver of the car and his companion both testified that there was no street light at the intersection, and that it was dark. Appellee was about 67 years of age, was carrying some packages which she had brought from a near-by store, and had a light shawl thrown over her head. She was slightly deaf in her left ear, but otherwise her hearing was not impaired.
Three grounds of negligence were alleged in the petition: (a) That the driver of the automobile failed to pass beyond and around the center of Brady and Garfield Streets before turning north; (b) that he did not sound his horn, or give any warning of the automobile's approach; and (c) that, in entering the intersection and turning to the north, he failed to keep a proper lookout for pedestrians and to lessen the speed of his car and have it under control. The two grounds first stated were withdrawn by the court, and only the third was submitted to the jury.
There would seem from the evidence to have been no good reason why the driver of the car did not see appellee unless the wind shield was in the condition the appellee and Miss Kuehl said appellant told them it was. The intersection was lighted. The jury could have found that the paving was covered, to some extent, by snow, and the lights of the automobile must have illuminated the street beyond the intersection. Of course, in turning, the rays of light might not have fallen directly upon appellee. It seems to us that the jury might properly have inferred from the evidence that the driver of the automobile was negligent in failing to keep a proper lookout for pedestrians and in failing to observe appellee soon enough to have prevented the accident.
According to the testimony of the driver, the speed of the automobile was about six miles per hour. It was his duty to drive the car carefully, and to keep a lookout for pedestrians on the street. As Garfield Street stops at the intersection, there was, of course, less likelihood of pedestrians' crossing the street at the point than in other sections of the city. This did not, however, relieve the driver from the duty to keep a lookout for the safety of pedestrians. We think there was sufficient evidence of negligence to carry the case to the jury. Holderman v. Witmer, 166 Iowa 406, 147 N.W. 926; Roberts v. Hennessey, 191 Iowa 86, 101; Rolfs v. Mullins, 179 Iowa 1223, 162 N.W. 783.
II. Exceptions were preserved by appellants to Instructions 1, 6,-7, and 10, and to the charge as a whole. The court in Instruction 1 purported to state the facts about which there was no dispute in the evidence. The complaint of this instruction is highly technical and without merit. The facts stated by the court were without dispute in the evidence, and the form of stating the same was sufficiently accurate, and in no sense misleading, as claimed by appellants.
The court, in the fore part of Instruction 6, recited all of the grounds of negligence alleged in the petition, and later in the same instruction, withdrew all of them except the alleged failure of the driver to keep a proper lookout for pedestrians and to lessen the speed of his car and to have it under control. Again, in the succeeding instruction, the court informed the jury that the above ground of negligence alone was submitted for their consideration. In so far as...
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