Brekke v. Rothermal

• Decision Date: 14 December 1923
• Docket Number: No. 35074.,35074.
• Citation: 196 N.W. 84,196 Iowa 1288
• Parties: BREKKE v. ROTHERMAL.
• Court: Iowa Supreme Court

196 Iowa 1288

196 N.W. 84

BREKKE

v.ROTHERMAL.

No. 35074.

Supreme Court of Iowa.

Dec. 14, 1923.

Appeal from District Court, Palo Alto County; N. J. Lee, Judge.

Action to recover damages for personal injury caused by a child of six years being struck by an automobile operated by the defendant. The action is brought by the father of the child as next friend. In the opinion we refer to the child as though he were the appellee. Verdict for plaintiff, and defendant appeals. Reversed.E. A. & W. H. Morling, of Emmetsburg, for appellant.

Davidson & Burt, of Emmetsburg, for appellee.

FAVILLE, J.

The street upon which the schoolhouse in the town of Graettinger is located runs north and south. At the schoolhouse corner this street intersects another one at right angles. The schoolhouse is located on the southwest corner of this intersection.

On the morning of September 15, 1920, the appellee's father was driving an automobile in a southerly direction upon this north and south street approaching the intersection near the schoolhouse. He was bringing his children to school. A short distance behind him the appellant was driving his automobile, and was also bringing his children to the schoolhouse. The two cars were a considerable distance apart, and as they approached the street intersection the car in which appellee was riding turned to the left, close to the northeast corner of the intersection, and stopped so that the front wheels of the car were upon the east crossing at the intersection. Appellant's car was proceeding southward upon the north and south street. Appellee's father, Brekke, was driving his car, in which were his two boys and two girls. Appellee was sitting in the front seat with his father, and the other children, all of whom were older than appellee, were seated in the rear seat. When the car stopped at the intersection it was headed nearly east, and the three children in the rear seat immediately got out on the right-hand, or south side of the car, and started in a southwesterly direction across the street toward the schoolhouse. At that time the bell was ringing and the children were in a hurry. As the car approached the intersection there were children in the street hurrying to the schoolhouse. Appellant observed the three children, and the testimony tends to show that he sounded the horn on his automobile and applied the brakes, and the three children passed in front of his car toward the schoolhouse. It appears that the appellee also got out on the right-hand side of his father's car, but for some reason he went around the car to the left-hand side, next to his father, and then returned hurriedly around the front of the car and started to run across the street in a southwesterly direction toward the schoolhouse. In so doing he was struck by appellant's car, and received serious injuries. The boy was at that time six years of age.

[1] I. It is urged in behalf of the appellant that the evidence fails to show that he was guilty of negligence in any of the particulars alleged in the petition, and that the trial court erred in refusing to direct a verdict in his behalf because of such insufficient testimony.

The petition specifies five grounds of negligence, as follows: (1) Failure to give warning of the approach of the car; (2) operating the car at an excessive, dangerous, and reckless rate of speed; (3) failure to turn the car so as to avoid striking the appellee; (4) failure to have the car under sufficient control to stop before striking the appellee; (5) failure to keep a proper outlook to discover appellee in time to have stopped the car.

It is the contention of the appellant that the injury to the appellee was purely accidental, and in no way due to any negligence or fault on his part. It is his claim that the evidence presented a situation where the appellant was driving his car in a careful and prudent manner, having due regard to the situation in which he was placed, when the appellee suddenly and unexpectedly ran from the street almost in front of appellant's car, striking it on the front end of the fender, or on the front end of the car.

The evidence is not clear as to the exact part of the car that collided with the appellee. It was either the front of the fender or the front of the car. He fell backward, and on his side, and evidently to one side of the car.

There is little substantial conflict in the evidence as to how the accident occurred. Appellee's father testified:

“Q. Did you notice the rate of speed it was apparently traveling? A. No, sir; I could not say as to the rate of speed. Q. You were accustomed to drive a car at that time and accustomed to noticing the speed of cars when they were in motion? Knew something about the speed? A. Yes, sir. Q. Now what would be your best judgment as to about the speed that car was traveling as it came from the road toward the intersection where you were that morning? A. In my judgment it would be about 15 or 20 miles; something around there. Q. Did you notice any slackening of the speed; that is, was the car going any slower at the time it got to the crossing at the intersection, or about that point, from what it was going before that? A. No, sir. * * * Q. Now, describe, then, what you heard--what sound it was you heard, that attracted your attention. A. It was what I thought was putting on the brakes pretty hard, what I thought it was, but that is all I know about it.”

Another witness for the appellee testified:

“I was running slowly all the way from home to school. I think I started about the time the five-minute bell was ringing. I saw Mr. Rothermal's car as he was coming up the hill. I was about even with him when he turned the corner. I was running toward the schoolhouse on the west side of the north and south street. He was turning in that corner or coming up the hill. I was about even with the south crossing. I continued to run until I got clear down to the Bondhus corner. Mr. Rothermal's car passed me about half way down the block. It reached the intersection of the street ahead of me. * * * The Rothermal car was traveling in the traveled path out in the middle of the street. * * * As the Rothermal car came into the intersection I think he blew the horn about at the crossing. I didn't hear more than one sound of the horn; not so very sure I heard that. I thought I heard something that sounded like a horn. I went right on to school.”

A sister of appellee testified:

“Q. Did you hear any noise of an automobile horn or putting on of brakes or anything of that kind? A. Well, I heard a crash, as if brakes were being put on, and I heard a scream. That is what attracted my attention. Previous to that I hadn't heard any horn. I was on the sidewalk when I heard this crash of brakes, or whatever it was.”

Another witness for appellee testified:

“When Mr. Rothermal's car came down from the north the two Brekke girls and Jacob were over on the west side of the road. The girls were almost over to the sidewalk. I didn't hear any sound of a horn or putting on brakes. The Rothermal car stopped over to the east of where it is shown on the plat. We were about even with it; almost directly west. Q. Did you notice anything else in regard to this accident--see Herman coming across the road at that time? A. Well, it appeared to me as though he ran from in front of the Brekke car; in front of Mr. Brekke's car. Q. Oh; came from in front? A. Yes, sir. Q. And then started across the street? A. Yes, sir; I didn't see him after that.”

The appellant was a witness in his own behalf, and testified:

“As I turned south from the main street going towards the schoolhouse I was running about 8 miles an hour. I first saw the Brekke car about a half block north from where the accident happened. In my car were my oldest boy and my youngest one. The Brekke car was going about the same speed as my car, I should judge. I didn't notice it in particular. I know that I didn't gain on it. It was just about the same. The first that I noticed about the Brekke children was Mr. Brekke turned out to the left side of the road and stopped. Very shortly after that the children commenced to get out of the right-hand side. But very shortly after that, I mean that it was a few seconds, possibly. There was no indication that the Brekke car was going to stop there at the intersection until it did stop. I didn't know whose car it was. I couldn't see who was in it. When I first noticed the children getting out I was about 20 feet north, back 20 or 22 feet, possibly just a little back of the crossing there. The first I noticed about the children they were getting out, or after they were out, I should say. Q. In what way did they get out of the car? A. Just one after the other. Just jumped right out and started right out in a westerly direction, and without paying any attention to my approaching car. Q. Were they getting out hurriedly or not? A. Yes; they were apparently in quite a hurry. Q. Did they look either way? A. Well, I think they were looking west as they were running, but they didn't look north. When I saw them crossing the street I blew the horn as I came closer to them, and they didn't look my way, and I blew my horn and put my foot on the brake. Then they looked around at my approaching car, and got out of the way. * * * Q. After they had passed, then just describe what took place. A. Well, it was only a short distance between my car and Mr. Brekke's car, but I didn't any more than get quite even with the front end of Brekke's car when there was another boy came from somewhere, and dashed into my car. Q. Which way did he come from? A. From the east. That is, I only saw him just a second or two before he dashed into me. Q. And just about where did the boy and your car come together? A. Well, it was just about even with the front end--I mean even, as far as east and west is concerned--just about even with Mr. Brekke's car. Q. What part of your car did the little boy...