Barnes v. Barnett
|United States State Supreme Court of Iowa
|169 N.W. 365,184 Iowa 936
|C. C. BARNES, Appellee, v. A. M. BARNETT, Appellant
|16 November 1918
Appeal from Des Moines Municipal Court.--O. S. FRANKLIN, Judge.
ACTION at law to recover damages on account of an alleged collision of automobiles in the city of Des Moines. Judgment for plaintiff, and defendant appeals.--Reversed and remanded.
Reversed and remanded.
Thomas A. Cheshire, for appellant.
Carr Carr & Evans, for appellee.
In his petition, plaintiff alleges that he was driving an automobile west on Ingersoll Avenue in the city of Des Moines, intending to turn south on Thirty-sixth Street; that, as he was making the turn, he discovered the defendant coming to the east on the south side of the avenue, driving an automobile at such high rate of speed that plaintiff, to avoid a collision, turned his car to the east, giving defendant room to pass him; but notwithstanding this precaution, defendant carelessly, negligently, and recklessly drove her car into and against the car of the plaintiff, breaking and injuring it to the extent of $ 500, for which he asks judgment.
The defendant admits that, at the time mentioned, she was driving her car east on Ingersoll Avenue, and alleges that, as she was approaching the Thirty-sixth Street crossing, she saw plaintiff's car moving west on the north side of the avenue; that, as plaintiff neared Thirty-sixth Street, he turned his car slightly into the intersection, on the east side thereof, and practically stopped; that defendant's driver, noticing this situation, and knowing that he had the right of way over the crossing as against the plaintiff, who had practically stopped, continued his course along the south side of the avenue, and, just as he entered upon the intersection, plaintiff suddenly put his car in motion, driving it immediately in front of defendant's car, causing the collision of which he complains. Defendant further alleges that, in driving east on the south side of Ingersoll Avenue she had the right of way, in preference to the plaintiff, moving west on the north side of the avenue and turning to the left on Thirty-sixth Street; and that the collision was caused by plaintiff's own negligence in making a short turn to the south on the east side of the intersection, instead of making a wide turn to the west side of such intersection, as the law requires. Defendant also denies that she or her driver was in any manner negligent, or that her car was being driven at a negligent or reckless rate of speed.
Defendant, by way of counterclaim, restates the allegations of her answer, and alleges that the collision was caused by plaintiff's negligence, and that thereby her car was damaged, and that she herself sustained serious and painful injuries, for all which she asks judgment in the sum of $ 1,000. The issues were tried to a jury, which returned a verdict for the plaintiff for damages to the amount of $ 93, and defendant appeals.
The exceptions taken and argued by appellant relate principally to the instructions given, and to the denial of defendant's requests for instructions. To an understanding of the bearing and effect of the rulings of the court in these respects, some reference to the testimony is necessary. It will also aid in understanding the situation to note that what the witnesses call the "north side" of Ingersoll and "south side" of Ingersoll are separate and independent tracks, each 20 feet wide, between which is an unpaved and unimproved strip 20 feet wide, occupied and used exclusively for street railway purposes, except at the street crossings, which are paved and open to public use.
As a witness, the plaintiff, speaking of his approach to Thirty-sixth Street, says:
On cross-examination, among other things, he says:
Another witness, King, who was with the plaintiff at the time, says that, as they approached the Thirty-sixth Street intersection, he saw the defendant's car, coming at a terrific rate of speed, about 300 feet away, and called plaintiff's attention to it; that, as the car came up plaintiff tried to turn his car,...
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