Bauer v. Reavell

• Decision Date: 03 April 1935
• Docket Number: 42836.
• Citation: 260 N.W. 39,219 Iowa 1212
• Parties: BAUER v. REAVELL.
• Court: Iowa Supreme Court

260 N.W. 39

219 Iowa 1212

BAUER v. REAVELL.

No. 42836.

Supreme Court of Iowa.

April 3, 1935

Appeal from District Court, Dubuque County; P. J. Nelson, Judge.

This is an action by the plaintiff against the defendant to recover damages arising out of personal injuries caused by the defendant's car being driven into, and colliding with the plaintiff as a pedestrian while standing, as she claims on the curbstone, knocking her down, and causing the injuries complained of. Trial was had to a jury and a verdict was rendered in favor of the plaintiff, and the defendant appeals.

Affirmed.

Plaintiff having alleged specific acts of negligence, cannot depart from issues so tendered, and court is warranted in submitting only alleged grounds supported by evidence.

Kenline, Roedell, Hoffman & Tierney, of Dubuque, for appellant.

John J. Kintzinger and Al J. Nelson, both of Dubuque, for appellee.

HAMILTON, Justice.

North Grandview avenue in the city of Dubuque, Iowa, is a wide boulevard with parking in the center, running north and south. The extreme north end of this boulevard spreads out into a wide intersection, branching out westerly into two streets, Grace street running due west, and Delhi street running in a northwesterly direction. The territory between Delhi and Grace streets is thus wedgeshaped, with the point or apex of the wedge pointing eastward into this broad intersection. Another branch from this broad intersection goes eastward. which is a continuation of Delhi street. At the point or apex of this territory between Grace and Delhi streets is an oil station, and around the oil pumps or tanks and from one street to the other, entirely around this apex, is a covering of cement of apparently the same material and elevation as the sidewalk. At the north is an approach to the oil station from Delhi street, leading from the brick pavement up onto the cement surrounding the oil pumps or oil station. This approach is 41 feet in length and slopes up from the street to the sidewalk level and this slope is about 3 feet in width. Delhi street is 36 feet wide and is paved with brick. A street car track runs down the center of the street. There is a cement curb on each side of the street. This curb, at or near the point where it intersects the approach to the oil station, is 7 1/2 inches high from the surface of the pavement, and 6 inches in width. Coming from the west, this curb ends at the west side of this 41-foot approach to the oil station, and turns in to form the curb to the driveway or approach leading up to the oil station. Between this curb and the cement sidewalk is a terrace of earth a few feet in width. There is a light or telephone pole in this terrace, located 3 feet west from the west side of this approach, and 2 feet in or south from the face of the curbstone. Just west of this pole, about 3 feet, is a " slow" sign, supported by an angle iron about 8 feet high. The " slow" sign is fastened to the top of the angle iron. This angle iron is about 1 foot south from the face of the curb.

On the night of November 20, 1932, at about 9:45 o'clock p. m., the plaintiff, a lady sixty-one years of age, was waiting for a bus. She says she was standing on the curbstone, directly north of this telephone pole, and, while standing there, something suddenly " lifted her up" and the next thing she knew she was lying on the pavement and a man was standing over her saying: " If only somebody would come and help me pick you up off this cold cement." " That this had to happen to me." No horn or signal of any kind was sounded before she was hit.

Defendant was proceeding east along Delhi street, driving his Model A Ford car. His wife and her father and two small children were in the back seat. The defendant was alone in the front seat, operating the car. It was Sunday evening and they were going to visit friends who lived south on Grandview avenue. He says he had been driving about 15 miles an hour and as he approached the corner to make the turn to go south on Grandview avenue he slowed down to 10 or 12 miles an hour. He suddenly saw a person, about 3 feet in front of his car, coming towards him.

It is established by the evidence without dispute from admissions of the defendant that his car in some way came in contact with the plaintiff and knocked her down upon the pavement. He gives it as his judgment that it was the right corner of his front bumper that struck her. That she was severely injured is amply shown by the evidence. She was taken to a hospital and examined by a physician, X-ray pictures were taken, and the doctor testified that the large bone of the leg, called the tibia, was fractured in several places, extending into the knee joint. The small bone, or fibula, was fractured on or about the same level. Her face and scalp were greatly swollen and discolored. There was a bad bruise or contusion on the left side of her head, above the ear; the scalp was raised, probably half an inch, and there was a hemorrhage underneath the scalp over an area larger than the palm of the hand. One of her ribs was fractured. There were two fractures in the pelvic region, one of the pubic bone, and the other of the ascending remus. The evidence showed that she suffered intense pain for weeks and sustained permanent injuries, and the verdict, while large, is not excessive under the evidence and the conditions disclosed.

One hundred and eight separate and distinct errors are assigned, covering over fifty pages of printed matter, and deal with practically everything pertaining to the trial-the examination of the jurors on their voir dire, the pleadings, the rulings of the court on the admission or rejection of testimony, the refusal of the court to direct a verdict at the close of the evidence of the plaintiff and at the close of all the evidence, the giving of the instructions, the arguments of counsel, and the conduct of the jury in its deliberations. Counsel for appellant certainly were diligent in making objections and pointing out alleged errors. To analyze and separately discuss each and all of these various assignments of error within the proper compass of this opinion would be entirely out of the question. We have carefully read the entire record and examined the authorities and for the most part the complaints made by the appellant are not well founded.

His first proposition relates to misconduct with reference to the examination of the jurors on their voir dire, and also to the admission of testimony bearing on the question of liability insurance. Each juror was asked by the attorney for plaintiff this question: " Are you a stockholder, officer or director in any insurance company writing liability insurance?" This court held in Raines v. Wilson, 213 Iowa, 1251, at page 1262, 239 N.W. 36, that a similar question was proper to be asked for the purpose of informing counsel relative to his right in exercising peremptory challenges, there being nothing in the record to show want of good faith on the part of plaintiff's counsel, nothing to show a willful, diligent, or persistent course or effort to impress upon the jury the fact that defendant's liability was insured, and that there was no abuse of the court's discretion in permitting this question to be asked. See, also, Olson v. Tyner (Iowa) 257 N.W. 538.

The insurance matter was again mentioned by the plaintiff's witnesses in relating the conversation with the defendant shortly after the accident occurred, and we think comes within the rule in the case of Stilson v. Ellis, 208 Iowa, 1157, 225 N.W. 346, where the object and purpose was to introduce evidence of admissions against interest, and the information concerning insurance carried by the defendant was elicited as a part of the conversation containing the admissions, and under such circumstances complaint cannot be made, because a part thereof referred to the liability insurance. The conversation took place at the hospital soon after the accident. There were present two policemen, the daughter, and the son-in-law of the plaintiff. Policeman Gilligan related the conversation with the defendant as to how the accident occurred and in the course of this testimony he said: " He (referring to the defendant) said that he was driving east and he didn't see this lady until he had hit her; he struck this lady and knocked her down.

Q. Did he say anything at that time as to what part of the car he had hit her with? A. He says he didn't know; he didn't see the woman until he had struck her and felt the impact against the car; he got out and the woman was lying in the street. Had further conversation with him at the hospital with reference to this.

Q. What did Harry Reavell, the defendant, say at that time? A. I asked him if he had insurance and he said he did and he would take care of this lady and see that she was taken care of at the hospital and get her a doctor."

As to a part of the same conversation in the hospital, the witness George Oakley, son-in-law of the plaintiff, testified: " He said he was about three feet or that far in front of her before he noticed her; he said he stopped his car and went around and picked her up so she wouldn't lay on the cold cement; he said he couldn't figure how he hit her.

Q. Did he say at that time whether everything would be taken care of? A. Yes. He said he was willing to settle and he wanted everything taken care of."

Mrs. Oakley, plaintiff's daughter, then related the same conversation at the hospital, and she testified: " Mr. Reavell was there; heard him speak of this accident. He said he didn't know how he hit her; that he was about three feet from her, before he seen her.

Q. Did he say anything there about whether or not he was willing to settle? A. He said everything would be...