Carruthers v. Campbell
| Decision Date | 06 March 1923 |
| Docket Number | 34391 |
| Citation | 192 N.W. 138,195 Iowa 390 |
| Parties | T. R. CARRUTHERS, Appellee, v. JOHN CAMPBELL, Appellant |
| Court | Iowa Supreme Court |
Appeal from Van Buren District Court.--F. M. HUNTER, Judge.
ACTION at law, to recover damages alleged to have been sustained by plaintiff in a collision of automobiles upon the public highway. Verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
J. C Calhoun, for appellant.
Walker & McBeth, for appellee.
The accident occurred at the junction of a north and south highway with another public road entering it from the east. The view between the two roads at this corner was hidden, or at least obscured, by a heavy growth of weeds and standing corn. Plaintiff was driving a Ford car west, intending to make the turn to the north, and defendant was at the same instant driving a Studebaker car from the north, intending to make the turn to the east, and neither seems to have discovered the approach of the other until very near the instant of collision. Plaintiff claims to have sounded his horn as he approached the corner, though this is denied by the defendant, who admits that he himself did not sound any signal or alarm. The cars came into collision slightly north of the angle of the turn, with the result that both cars suffered considerable injury; and plaintiff further alleges that his minor daughter, riding with him, received injuries for the treatment of which he incurred expense for the services of a physician.
It is the claim of plaintiff that the collision was caused by the negligence of the defendant in failing to keep his car on the right side of the road. On the other hand, defendant denies all negligence on his part, alleges that the collision was the result, in whole or in part, of plaintiff's own want of due care, and sets up a counterclaim for the damages so resulting to his Studebaker car.
I. Appellant argues that plaintiff is conclusively shown to have caused or contributed to the collision by his own negligence. The record does not justify such a ruling. It is true that, if defendant's theory of the facts were conceded, plaintiff could not recover, but there is no such concession, and the testimony bearing upon the proposition is in direct conflict. While defendant claims and offers testimony to the effect that he was on the right side of the traveled track, and that there was ample room for plaintiff to have prevented the collision by turning his car slightly to the right, the plaintiff testifies just as positively that defendant's car so obstructed the way that he could not avoid the collision without driving into the graded ditch on the east side, at the risk of overturning his own car. It appears that the beaten path at this point is on or near the east margin of the graded space between the ditches on either side of the road, and that between the beaten path and the west ditch there was a clear space of ten feet or more, over which a car coming from the north could turn out, if met by another vehicle. Under such circumstances, if proved, it cannot be said, as a matter of law, that a driver moving south is free from negligence simply because he keeps to the beaten path on the east side, to the injury of another car rightfully going north. In this case, the jury could properly find that plaintiff was on the right side of the road. This would not of course,...
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