Barnes v. Barnett

• Decision Date: 16 November 1918
• Docket Number: 32185
• Citation: 169 N.W. 365,184 Iowa 936
• Parties: C. C. BARNES, Appellee, v. A. M. BARNETT, Appellant
• Court: Iowa Supreme Court

169 N.W. 365

184 Iowa 936

C. C. BARNES, Appellee, v. A. M. BARNETT, Appellant

No. 32185

Supreme Court of Iowa, Des Moines

November 16, 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.

WEAVER J. PRESTON, C. J., GAYNOR and STEVENS, JJ., concur.

OPINION

WEAVER, J.

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:

"Before I started to turn south on Thirty-sixth Street, I saw a car coming up. It must have been a block, pretty near, coming east, traveling fast. I thought I could get ahead of it. Thirty-sixth Street is not very wide. I had stopped pretty near on the other corner on the opposite side of the street, and swung around to go south. I seen I could not make it,--he was so close onto me he would hit me anyway. I was trying to get turned east so I would be going the same way he was, and give him room between me and the curb, to go by; but I couldn't get turned. I got part way angled around, headed the same way he was. My machine was not running fast enough to get away from him. He hit me cornerwise about the front of my wheel, and hit the wheel and the curb about the same time. He hit about a foot of the running board of my left side, and front wheel on the other. Going from Ingersoll Avenue onto Thirty-sixth Street, I made just a natural turn. I was going south on Thirty-sixth Street. I went about the middle of the paving. It is narrow there. In making the turn, I went up about the center of Thirty-sixth Street. In going south on Thirty-sixth Street from Ingersoll, I had to cross the car tracks at that intersection. When I first noticed the car of defendant approaching, just as I started to turn south, I saw he was up the street, 300 feet away, I would say. After I drove over to the other place, there was a street car right behind me, and I drove across. I thought I would have plenty of time to get across. I saw I couldn't go ahead, to avoid an accident. The head end of my machine was then just coming out onto the paving south of the street car tracks on Ingersoll. The defendant's car was about a hundred feet, I guess, away, at that time. It was all done in such a hurry,--I tried to get away. At the time I started to turn east on Ingersoll Avenue and let him go by, my machine was going about 8 miles an hour. The defendant's machine was going 40 or 45 miles an hour."

On cross-examination, among other things, he says:

"I was about half way across the south track of the avenue, when the collision occurred. As I approached the south side of Ingersoll Avenue, I knew that this car was coming east on that side, and close to the intersection, and knew it was coming fast. Did not think it was likely to collide. I was driving slowly--not over eight miles an hour. Thought I had time to get across. As I came west, I turned right around the curb, just about the middle of the street. Made as good a turn as they ordinarily do. It is narrow there. Made an ordinary turn,--not absolutely to the west side. Knew it was the custom at street intersections to give east and west traffic the preference. First saw the car when it was about 300 feet west of Thirty-sixth Street. * * * The defendant's car sounded its horn once, about the time when I first saw it. My car was headed to the southeast in the south track of the avenue when it was hit. I was trying to let him pass me on the right side."

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,...