Babendure v. Baker

• Decision Date: 03 April 1934
• Docket Number: No. 42292.,42292.
• Citation: 253 N.W. 834,218 Iowa 31
• Parties: BABENDURE v. BAKER et al.
• Court: Iowa Supreme Court

218 Iowa 31

253 N.W. 834

BABENDURE

v.BAKER et al.

No. 42292.

Supreme Court of Iowa.

April 3, 1934.

Appeal from District Court, Linn County; H. C. Ring, Judge.

Action at law for damages for personal injuries. Verdict by the jury by direction of the court in favor of the defendant. The plaintiff appeals.

Reversed.

Shotwell, Monsky, Grodinsky & Vance, of Omaha, Neb., Wheeler, Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, and Jack W. Marer, of Omaha, Neb., for appellant.

Deacon, Sargent, Spangler & Hutchison, Edward J. McPartland, and George C. Claassen, all of Cedar Rapids, for appellees.

STEVENS, Justice.

This action arose out of an automobile collision which occurred on the Lincoln Highway a few miles west of Marshalltown about 8 o'clock a. m. on January 28, 1931. The facts, so far as at this time material disclosed by the record, are as follows:

Appellant resides at Fremont, Neb. In pursuance of a prior arrangement between the parties interested, appellant left Fremont on the morning in question about two o'clock in company with her husband, a cousin, and other members of the family. The automobile, a five-passenger Buick sedan, was at the time of the accident being driven by appellant's husband, Abe Babendure. The automobile was owned by a relative of the driver of the car. Babendure had been driving the automobile from about the time the party left Dunlap. The automobile was proceeding eastward to Chicago. When it arrived at a point near the accident and at a curve in the paved highway, the driver observed another automobile approaching from the east. This was a Whippet car owned by Clyde Baker, who, with his son, the driver of the car, occupied the front seat. Appellant, the cousin who was accompanying the party, and Abe Babendure all occupied the front seat of their car. Others of the party were sitting in the rear.

The testimony on behalf of appellant was that, as the Buick automobile started to go down the grade traveling on the right-hand side of the pavement, the occupants of the front seat saw appellee's car approaching from the east when it was a safe distance away; that, as it approached, it was traveling on the left side of the highway, weaving back and forth; that, in an effort to avoid a collision therewith, the driver of the Buick automobile turned across the highway to the left. The collision resulted. The right front end of each of the automobiles struck. The driver of the Whippet automobile testified that it was astride the two black lines in the center of the pavement at the instant of the collision. The Buick car was stopped on the north side of the pavement near a post in the guard rail which was about three feet from the pavement. The owner of the Whippet car and an occupant of the Buick automobile were killed. Appellant suffered serious injuries.

Testimony tending to show that the pavement was frosty was introduced by both parties. The driver of the west-bound automobile denied that it was weaving from side to side, and testified that he drove at all times on the right-hand, or north, side of the pavement. The course of the Buick automobile across the pavement was shown by the wheel marks thereon. The driver of the west-bound car testified that he put his foot on the brake but was unable to stop the car in time to avoid the collision. The shoulder on the south side of the pavement was approximately five feet in width and was wet. There was no guard rail on the south side of the pavement at the point of the accident. South of the shoulder was a ditch three or four feet deep and seven or eight feet wide.

At the conclusion of all the testimony, the court instructed the jury to return a verdict in favor of the defendant. The motion was sustained upon the theory that the Buick car was being operated on the wrong side of the pavement at the time of the collision. The place and position of the two automobiles immediately after the accident is not in dispute. Photographs introduced in evidence disclose that each of the...