Bishard v. Engelbeck

• Decision Date: 24 September 1917
• Docket Number: 31409
• Citation: Bishard v. Engelbeck, 180 Iowa 1132, 164 N.W. 203 (Iowa 1917)
• Parties: FRANK BISHARD, Senior, Administrator, Appellant, v. E. R. ENGELBECK, Appellee
• Court: Iowa Supreme Court

164 N.W. 203

180 Iowa 1132

FRANK BISHARD, Senior, Administrator, Appellant, v. E. R. ENGELBECK, Appellee

No. 31409

Supreme Court of Iowa, Des Moines

September 24, 1917

Appeal from Polk District Court.--W. H. MCHENRY, Judge.

APPEAL from a judgment for costs upon a directed verdict in favor of the defendant.

Affirmed.

F. T Van Liew and A. L. Garvey, for appellant.

Brammer Lehmann & Seevers, and John L. Gillespie, for appellee.

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

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 Biber further...