Andrew v. Clements, 47760

• Citation: 242 Iowa 144,45 N.W.2d 861
• Decision Date: 06 February 1951
• Docket Number: No. 47760,47760
• Parties: ANDREW v. CLEMENTS.
• Court: United States State Supreme Court of Iowa

Page 861

45 N.W.2d 861

242 Iowa 144

ANDREW v. CLEMENTS.

No. 47760.

Supreme Court of Iowa.

Feb. 6, 1951.

Steward & Crouch, of Des Moines, for appellant.

Whitfield, Musgrave, Selvy, Fillmore & Kelly, of Des Moines, for appellee.

WENNERSTRUM, Chief Justice.

Plaintiff seeks recovery of damages for personal injuries sustained by him as a result of an accident at a street intersection when the plaintiff, a pedestrian, collided with the side of an automobile owned and operated by the defendant. The trial court, at the close of all the evidence, held that the plaintiff was guilty of contributory negligence as a matter of law, withdrew all specific charges of negligence, and only submitted to the jury the issue of last clear chance. The jury returned a verdict for the defendant. The plaintiff has appealed.

The accident which has occasioned this litigation occurred at the intersection of Seventh and Cherry Streets in Des Moines. Cherry Street runs east and west and Seventh Street runs north and south. A viaduct runs in a north and south direction directly over Seventh Street, and Cherry Street runs under this viaduct approximately one block to the south of its north end. There are concrete abutments immediately to the north of Cherry Street which support the viaduct. They close the area to the north under it as the viaduct proceeds on a declining grade north from Cherry Street. There are sidewalks extending north and south from Cherry Street paralleling the concrete abutments. The sidewalks on both sides of Seventh Street south of Cherry Street are directly opposite those on the north side, and it is claimed that the extention of this sidewalk north and south across Cherry Street constitutes a crosswalk. The street underneath the viaduct to the south of Cherry Street is open for traffic. A short distance to the south of Cherry Street there is a tool house or small building which obstructs the east walk paralleling the viaduct at the street level. It is also shown that in the area immediately south of Cherry Street and under the viaduct, automobiles park on both sides of the street. This condition was present at the time of the accident which occurred on March 25, 1948 about nine o'clock in the morning.

The appellant is employed as a city salesman by the Carpenter Paper Company whose place of business is located on the west side of Seventh Street and south of Cherry. On the morning of the accident he walked up Seventh Street from his employer's place of business for the purpose of reaching the business section of the city east of Seventh Street. The appellant testifies that he proceeded up the center of the street underneath the viaduct because of the small building blocking the sidewalk on the east side and also by reason of the parked automobiles on the east side of the street. It is the claim of the appellant that by reason of the accident he has no memory of what happened after he had passed a point forty feet south of Cherry Street. He stated that it was his intention to proceed up the center of Seventh Street to the south side of Cherry Street, then eastward to the crosswalk, then northward across Cherry Street in the east crosswalk. There is divergence of testimony whether the appellant was within the east crosswalk or was farther to the west at the time of the accident.

Cherry Street is approximately forty-two feet wide from curb to curb. Immediately prior to the time of the accident the automobile driven by the appellee was proceeding in a westerly direction on the north side of Cherry Street at a speed of not to exceed twenty miles per hour.

Inasmuch as the testimony of the witnesses who were near the place of the accident at the time it occurred is of importance in reaching our decision, we shall set out a summarization of it.

Mrs. Virginia Snell testified that she was at the northwest corner of Seventh and Cherry at the time of the accident; that she saw Mr. Andrew walking from the south towards Cherry Street and that about the same time she observed an automobile approaching from the east which was then about a half a block from Seventh Street; that at the time she first saw the car, Mr. Andrew was three or four feet on the other side of Cherry Street or just coming into it; that she did not observe any change in the speed of the car and did not remember hearing any horn sounding or observe any swerving or turning aside of the automobile before the collision; that she did not see exactly what part of the car came in contact with him; that he was walking in the east crosswalk and that after the accident Mr. Andrew was lying southeast of the center of Seventh and Cherry. On cross-examination she testified that she could see Mr. Clements' car coming from the east; that she stopped to let it pass; that about that time she saw Mr. Andrew start across the street; that he was walking close to the cars that were parked in the area south of Cherry Street and under the viaduct and that as he started across Cherry Street he continued in a general northerly direction; that she did not see him turn his head either way and didn't see him look in either direction. She later qualified that statement by stating that she was not watching him but was observing a brief case that he was carrying. She testified that at no time was the appellant in front of the car and that if he had been in front of it she would have seen him getting hit, but she did not know what part of the car hit him; that she did not think there was going to be a collision until after it happened and that Mr. Andrew was still walking when she last saw him.

Frank M. Wheeler, who testified for the appellant, stated that he did not know for sure where the appellant was with respect to the open passageway on the east side of the viaduct and that the appellant was in the street; that he could not give any judgment where the appellant was with respect to being south of the open passageway and did not know where he was with respect to the center of Cherry Street; that it was hard to define exactly where the crosswalk was in reference to where appellant was lying but that he was close to it; that the appellant was not lying under the viaduct and that he didn't believe he was lying too far south; that he did not actually see the impact between the appellant and the automobile, and the first thing he saw was a man turn and fall to the pavement.

The appellee testified that the appellant collided with his car about twelve to fifteen feet west of the east sidewalk line on the east side of the viaduct and that there is a manhole about fifteen to sixteen feet west of the west edge of the east sidewalk (crosswalk); that he did not change the course of speed of his car at any time before the collision and did not sound his horn; that the appellant came in contact with the rear end of the left front fender just ahead of the windshield post; that at the time of the impact he had his left arm lying on the windowsill of the car and that the appellant came in contact with his elbow; that after he stopped his car he got out and walked back to where Mr. Andrew was lying by the side of the manhole cover. He denied that he had made a statement to Mrs. Snell at the time of the accident that he saw the pedestrian and thought he was going to stop. He also stated that following the accident he inspected the left side of his car and that dirt was off the rear end of the back fender, and that he observed fragments of flesh on the car door handle. It was his further testimony that he was probably forty or fifty feet east of Seventh Street when he first saw Mrs. Snell on the corner and that he continued to observe her until just before he saw the appellant. On cross-examination he stated that he was watching his line of traffic, that there was nothing in the way that he was going to hit and that he did not expect anybody to run into the side of his car; that he never saw anybody at anytime come from the south until just the instant before the appellant struck his car. In answer to an inquiry whether he looked to the south he stated: 'Well, not directly south, no.' He also testified that immediately prior to the collision the appellant was apparently endeavoring to move back away from the car and was trying to avoid running into it--just trying to stop; that he saw that the front end of his car did not hit the appellant; that he just scraped along the side of the car; that the point of impact was about twelve to fifteen feet west of the west edge of the crosswalk and that after the accident the appellant lay just around fifteen to sixteen feet from it; and that as the appellant struck the car he kind of turned and went down.

Lawrence A. Hall, a resident of Council Bluffs, was driving east on Cherry Street at the time of the accident. He stated he saw a pedestrian start from the south side of the street to cross Cherry; that when he first saw him he was coming out from underneath the viaduct in the opening; that the opening to which he refers is the street portion of Seventh Street; that when...