OPINION
STEVENS, J.
On a
clear day in October, 1914, about 12:45 P. M., the defendant
was driving a Cadillac automobile south on East Twelfth
Street in the city of Des Moines near the Henry Wallace
school building, a short distance south of a railroad
crossing. He turned his car to the left for the purpose of
passing a vehicle drawn by one horse. There appear to have
been no other vehicles and no pedestrians on the street in
that vicinity. Immediately after the car was turned to the
left, and when from 25 to 28 feet from a railroad crossing,
it collided with Frank Bishard, Jr., a six-year-old boy,
killing
him instantly. The street at the point of the accident was
paved with asphalt. The horse attached to the vehicle, which
was a light wagon, was driven by Ben Biber, who testified
that he was soliciting repair work, and that he did not see
the accident nor know of the presence of deceased upon his
wagon or in the vicinity until after the accident. The only
eyewitness to the accident who testified was Walter Collings,
a boy fourteen years of age, who stated, in substance, that,
at the time of the accident, he was on Cleveland Street, to
the north, going east, and that he saw the wagon and
automobile in the street, and the little boy sitting on the
rear end of the wagon box. We take the following extracts
from the appellant's abstract:
"He was on the end of the wagon, sitting up
on the end. The next movement I saw him make, he kind of
turned around and jumped off and started east towards the
school ground. He kind of turned around and slid down and
held on to his hands and jumped on the ground, and started to
run east. * * * I heard the brakes when Mr. Engelbeck put
them on; I noticed him rise from his seat a little bit when
he put on the brakes, a little before he struck the boy. * *
* The machine was not going so very awful fast. It slowed up
pretty quick after it struck the boy. I noticed whether or
not the wheels made a mark on the paving. The machine stopped
on the east side of the street about four or five feet from
the curbing. The machine did not run over the boy. The head
of the boy's body was lying toward the west after he was
struck by the machine. There was blood upon the paving there.
The wagon was in about the middle of the street. Mr.
Engelbeck was coming up about the middle of the street. Frank
Bishard did not make any movement after he was struck."
On
cross-examination, he further testified:
"Q.
Where was the automobile when you think you first noticed it?
A. About half way between Washington and the railroad track.
Q. You saw it before it got to the track? A. Yes, sir. Q. And
after it crossed them it struck the little Bishard boy? A.
Yes, sir. Q. Did it cross those railroad tracks going at a
very rapid rate? A. Not so very fast, no, sir. Q. You do not
think it was going fast? A. No, sir. Q. And shortly after the
automobile had crossed the railroad track did it overtake the
wagon? A. Yes, sir. Q. That was also going south on the same
street? A. Yes, sir. Q. When it got to the wagon, how did it
attempt to pass the wagon, by going to the left or to the
right of it? A. To the left of it. Q. It went to the left of
the wagon? A. Yes, sir. * * * Q. And when he dropped off the
wagon you say he started to run to the east?
A. Yes, sir. Q. And you say you saw him run into the right
front fender? A. Yes, sir. Q. And fall back? A. Yes, sir. Q.
He was not knocked a long ways south, was he? A. No. Q. He
fell right back? A. Yes, sir. Q. Just before the automobile
hit Frank you think you saw Mr. Engelbeck get the brakes on?
A. Yes, sir. Q. Do you remember whether that--the street was
smooth where it crossed the Northwestern tracks or as there a
bump there? A. There is a bump on the north side of the
track. * * * Q. Now, when little Frankie hit the fender he
sort of fell over backwards? A. Yes, sir. Q. And you think,
his feet stayed just about the same place where they had
been? A. Yes, sir. Q. And simply his head went back and down?
A. Yes, sir. Q. So his feet just about marked the spot where
he was standing when he was hit? A. Yes, sir. Q. And he fell
practically due west? A. Yes, sir. Q. So he was stretched out
east and west. Could you make a fair estimate as to how fast
that automobile was going? A. No, sir; I don't believe I
could. Q. You would not care to say how many miles an hour?
A. No, sir. Q. You do not think it was going over ten miles
an hour, do you? A. No, sir; I don't believe so. Q. You
do not believe it was going that fast? A. No, sir. Q. You
think that Mr. Engelbeck got the brakes on just about the
instant the boy dropped from the wagon? A. Yes, sir; about
the instant he was hit. Q. Got them on about an instant
before he was hit? A. Yes, sir. Q. And about an instant
before he dropped from the wagon? A. Yes, sir. Q. There was
not very long between the two? A. No, sir. Q. Because the boy
started to run? Court: Where did he hit the automobile, in
front or on the side fender? A. The side fender. Q. He never
got square in front of the car? A. No, sir. Q. He never did
get over in front of the automobile? A. No, sir. Q. He ran
into the side of the fender? A. Yes, sir."
He further testified that he was west of the car
when the accident occurred. The evidence shows that there was
a bump at the railroad crossing, and Collings testified:
"I
heard the bell in the railway tower ring there about this
time. The gates were not lowered; a hand car passed up the
railroad at this time. That was immediately after Mr.
Engelbeck passed. The bell in the tower began to ring before
Mr. Engelbeck reached the track. He didn't seem to
increase his speed very much that I could notice. He ran
about the same speed until the brakes were applied."
He
further testified that the front wheels of the car were 3 or
4 feet from the east curb when the automobile stopped.
Another witness testified that he arrived at the scene of the
accident very shortly thereafter; that the pavement was dry;
and that the marks thereon showed that the wheels of the
automobile had slid about 27 feet.
The
driver of the wagon testified that he did not hear the tower
bells or the railroad bells ring as he crossed the track;
that the first thing he noticed was an automobile coming
along to the left-hand side of him in the street; and that he
did not know of the accident until after it was all over, and
he looked back and saw the boy lying on the pavement. He
further testified:
"The
automobile was on the left side of me when it stopped, that
is, the east side of the street. I did not see the hind
wheels. Q. How much of the machine did go by you just as the
accident occurred? A. About 5 or 10 feet ahead of me. Q. The
front end of the automobile was 5 or 10 feet in front of your
wagon? A. Yes, sir. Q. And it stopped, and you drove on a
little ways to the engine house? A. Yes, sir. Q. Was that the
front or back end of the machine was 5 or 10 feet in front of
you? A. The front end."
C. M.
Staves testified that the defendant called his attention to
the accident; that he at once went to the scene thereof, where he found the body of deceased lying on
his breast, with the left side of the face down, his feet
toward the west, and his head to the east. The witness
Collings testified that the body lay in substantially the
position as indicated by the witness Staves, except that he
said that the head was to the west and the feet to the east.
The
undertaker who prepared the body for burial testified that
the skull was crushed, and a part of it driven into the
brain; that the injuries were on the left side of the
forehead; and that the skull was fractured all over the left
side, extending from the temple back into the region of the
ear.
Concerning
the movement of the automobile, the witness...
