Carpenter v. Campbell Automobile Co.

Decision Date11 March 1913
Citation140 N.W. 225,159 Iowa 52
PartiesLOLA CARPENTER, by next friend, ROY CARPENTER, Appellee, v. CAMPBELL AUTOMOBILE COMPANY, et al., appellants
CourtIowa Supreme Court

Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.

ACTION to recover damages for injury sustained by plaintiff due to a collision with an automobile driven by the defendant Black and owned by the defendant Means. Trial to a jury. Verdict and judgment for the plaintiff, and defendant Means appeals.


James C. Hume, for appellant.

John McLennan and Parsons & Mills, for appellees.



It appears from the record in this case that the defendant George Means is an automobile dealer in the city of Des Moines; that on Friday or Saturday, April 8 or 9, 1910, he received by freight from the factory three De Tamble automobiles; that upon the arrival of said machines certain persons in the employ of Means ran said machines, under their own power, to a garage owned and occupied by the Campbell Automobile Company and were left there in storage; that on the following Sunday, in the absence of Means, and without his consent or knowledge, the other defendant, C. L. Black, took one of these cars from the garage and drove it about the city; that the car so taken by Black was a two-passenger two-cylinder car, the gears and brakes of which were shifted and applied entirely by foot pedals; that Means, too, was driving about the city that afternoon, in another car, and while so doing met Black with the car aforesaid, which was then standing on the north side of Grand avenue, a few yards east of Sixth avenue, headed west; that upon seeing Black he went to him, and the following occurred, as testified to by Black: "When I saw Means approaching, I asked him to come and help me try to adjust the machinery of the car. He came over and said, 'What is the matter?' and I said 'The thing is not working right. Get in and ride around the block with me and see what is the matter.' He got in with me. I, still driving the car, proceeded west on Grand avenue. When I got to Seventh street, I turned north on Seventh street and proceeded north on the right-hand side of the street."

Means testified, touching this matter, as follows:

When I met him (Black), he had my machine. I got into it at his suggestion with him. He was going to show me that it was not working. I went along with him for that purpose. That was the sole purpose for going along. He suggested that I get in. He said, 'The old thing is bucking, or something, and you better go around the block.' I suppose I had a curiosity to see how the machine was working, or to know how my own property performed, and I got in the machine with him for that purpose. At the time I got in the machine, it was on Grand avenue, about one hundred feet east of Sixth avenue. The automobile was driven from there along Grand avenue to Seventh street, and then north on Seventh street. I had no particular objective point at that time. At the rate of speed we were traveling, an automobile could be stopped in a very short distance; in probably fifteen, twenty, or twenty-five feet. There was a great deal of travel from north to south on this street. There were business houses on the east side of the street and one or two on the west side. We were driving up the street when a motorcycle came in sight. The motorcycle was almost on us before we saw it, about forty feet away. I think at that time we were just about astraddle the east rail of the east track; maybe in the center of the east track. I know that we were on the right-hand side of the street. There is distance between the curbs and the street railway tracks sufficient to accommodate traffic on both sides. We were, I should think, ten, twelve, or fifteen feet from the east curb. I never rode a motorcycle, but I think they respond quickly to the turn of the handle. They guide like a bicycle. The automobile does not respond so quickly. The street was a perfectly smooth asphalt pavement. That was one of the best traveled public highways in the city, with many vehicles going up and down, automobiles, street cars, and buggies. It is the main street leading north and is the main thoroughfare because of its pavement. The motorcycle came from the north down Seventh street. It came right around the corner on the east side of the street, on the same side we were, and going rapidly. When we first saw the motorcycle, we were moving, I should judge, not over ten or twelve miles an hour, and Black turned to the left. The motorcycle turned to the right, and we almost met just a little bit west of the center of the street. Then the motorcycle shot in behind Mr. Black very suddenly. Motorcycles can turn quickly. That is, the motorcycle turned to the east or right of us. The automobile then went on across the street to the west side over the curb, mounted the curb, and the little girl at the time was almost opposite us; maybe ten feet south of it. She turned and ran north towards her mother and grandmother with whom she was walking. From what I could see, the little girl was trying to get out of our way. She stepped into a hole and fell. As she fell, the car struck the guy post and crushed the left wheel. Some of the broken spokes in the wheel fell on the child. She was tangled up in the wheel when I picked her up. The left wheel of the automobile struck the curbing first and ran on the sidewalk before the right wheel did. So we got on the sidewalk obliquely. After the car mounted the sidewalk, I cannot say as to whether it kept on straight or was steered one way or the other. It looked as if it went in a straight line. When I saw the motorman coming toward us, Black reached for the levers, and there were none there, and he just turned to the left and went upon the curbing. I think he reached for the levers about a second before he struck the curb. I do not think he reached for the levers until he saw he was going to hit the curb. An automobile going at ten or twelve miles an hour can be stopped in fifteen or twenty feet if you apply the brakes and they are working properly. Going slower you can stop it in a shorter distance. If it is going faster, it takes longer. I knew little about Black's experience in driving cars. I had ridden with him once or twice before. I had never seen him act in an emergency before.

Means further testified that, upon an examination of the machine after the accident, he found the wheel crushed in, frame hanger in front broken, the spring buckled up, the front lamp broken, steering rod bent underneath, caused by the impact with the guy post. He further testified that the car was controlled entirely with the feet. "It had two foot pedals. The left foot pedal was the reverse which could be use as a brake. The right was the high-speed pedal, and in order to apply the brake you had to kick it out with your heel and go forward on the right pedal to the brake. I do not think Mr. Black applied this brake at all."

Mrs. Morrison, the aunt of the little girl, and Mrs. Carpenter, the grandmother of the plaintiff, both of whom were with the little girl at the time of her injury, testified as to the rate of speed at which the automobile was going. Mrs. Morrison testified that at the time of the accident the automobile was going at the rate of thirty or thirty-five miles an hour. She said: "According to my observation, it was greater than the ordinary rate. Though I have never tested the rate of a car, I have ridden in them when going thirty or thirty-five miles an hour, and I have ridden in them when they were going eight or ten miles an hour, and I know the difference. I was pretty badly frightened. At the time I first saw the automobile it was twenty-five feet and possibly further than that from me. It was coming towards us at an angle. The post that the car struck was west of the sidewalk upon which the car ran. I should judge it was twenty-five feet from where the automobile stopped to the point where it mounted the sidewalk." Mrs. Carpenter did not attempt to estimate the speed of the car, but said that it was mounting the sidewalk when she first saw it, and that it was going very fast.

The acts of negligence complained of are:

(1) That the said defendants were, at the time of the accident hereinbefore set forth, running and operating said automobile at a rate of speed greatly in excess of that permitted by the city ordinance of the city of Des Moines, for the location where the said car was operated, and in violation of the state law in regard to the speed of automobiles and motor vehicles. (2) That the said defendants operated the car negligently, and willfully drove the car upon and across the curbstone and sidewalk on said West Seventh street, and struck this plaintiff while on said sidewalk. (3) That the defendants negligently drove the said automobile upon and across the sidewalk on the west side of said West Seventh street, and struck the plaintiff while plaintiff was on said sidewalk. (4) That the said defendants, while operating the said automobile, negligently failed to take care to avoid injuring the plaintiff, who was lawfully on the sidewalk along said street.

The defendant Means, answering these charges of negligence, after denying any negligence on his part or on the part of Black and denying that they were running at an unlawful or improper rate of speed, admits that the automobile was owned by him, but denies that it was being operated by him or by one of his agents or employees, and further alleges that the running of said automobile on West Seventh street at the time and place referred to and the injury to the plaintiff then and there occurring was the unsuspected and unforeseen result of an attempt on the part of Black to...

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