Crawford v. McElhinney
| Decision Date | 04 October 1915 |
| Docket Number | 29740 |
| Citation | 154 N.W. 310,171 Iowa 606 |
| Parties | R. S. CRAWFORD, Administrator, Appellee, v. B. W. MCELHINNEY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Wright District Court.--HON. C. G. LEE, Judge.
THIS action was brought by the administrator of the estate of Eicel June Crawford, a minor about eight years of age, to recover damages under the allegations that her death was caused by her being struck, while walking on a street crossing in Clarion, Iowa, by the automobile of the defendant, B. W. McElhinney, while it was being driven by his wife by his authority, direction, and with his consent. There was a trial to a jury which resulted in a verdict in favor of plaintiff and against both defendants for $ 4,000. The verdict was reduced by the trial court to $ 3,300 and judgment therefor entered. Defendants appeal.
Affirmed.
Nagle & Nagle and Birdsall & Birdsall, for appellants.
Peterson McGrath & Archerd and Kelleher & O'Connor, for appellee.
The collision happened September 5, 1912, at about five o'clock in the afternoon, while plaintiff's intestate was proceeding northward across Main Street. The line being traversed is marked "cross walk" between the First National Bank and the Lockwood store, on the plat here set out.
[SEE PLAT IN ORIGINAL]
The defendants in the automobile came from the north, and the accident occurred while the automobile was turning the corner from Lake Street into Main Street, going westward. Deceased died a few hours after being hurt. It is alleged that on said date a county fair was being held at Clarion, and in connection therewith an amusement program, largely advertised, was being given, all of which brought a large assembly of people; that the traveled portion of the streets was congested with horses, buggies, and automobiles, and the sidewalks and street crossings with pedestrians, among whom were a large number of children; that, at the time of the accident, there was in operation on Main Street an amusement game known as "Nigger Dip," which had attracted a large collection of people in and about the street and the crossing at the intersection of Main and Lake Streets and along the line of the west side of Lake Street. The grounds of negligence alleged are:
The defendants filed their separate answers, denying generally all the allegations in the petition.
At the close of plaintiff's evidence and again at the close of all the evidence, a motion was made to direct a verdict for Mrs. McElhinney on the ground that the evidence fails to show that she was negligent in the operation of the automobile, and because the evidence shows that the accident was caused by the deceased carelessly, suddenly and negligently turning and walking in front of the moving car so that defendant was unable to stop the car in time to avoid the accident. A similar motion was made in behalf of the defendant B. W. McElhinney, on the ground that he is not liable for the torts of his wife. The rulings on these matters, among others, are assigned as error.
We shall take up first the question as to whether there was evidence justifying the submission of the case to the jury on the question of the negligence of Mrs. McElhinney. Evidence was introduced on behalf of defendants from which the jury could have found that, at the time of the accident, Mrs. McElhinney was driving the car slowly, not more than four or five miles an hour; that as she approached the sidewalk she saw a boy and girl standing on the cross walk to the left of the car; that she blew her horn and the boy passed along the walk to the north, but the deceased remained standing on the walk and turned towards the south, probably attracted by the amusement on the south side of the street; that there was room for the car to pass over the crossing if the girl had remained where she was, but that, just as the car got on the crossing, she turned and started north and walked in front of the car; that at that instant Mrs. McElhinney disengaged the clutch and applied the brakes, but was not able to stop the car in time to avoid the accident; that the little girl was knocked down and passed between the front wheels and was caught by the left hind wheel, which was sliding, and which pushed her about two feet before the car was stopped; that to disengage the clutch and apply the brakes is all that can be done to stop a car; that the car was properly equipped with brakes, which were in good condition at the time of the accident.
Such was the general nature of the evidence introduced by defendants and, had the jury found for the defendants, such a finding would have had sufficient support. But there was other evidence in the case, from which the jury could have found that the facts were not as claimed by defendants. We shall not attempt to set out the evidence in detail, but enough to show that there was a conflict in the evidence for the determination of the jury. Plaintiff's evidence tended to show, and the jury could have so found that the crossing on which deceased was walking at the time she was struck is a cement crossing six feet in width, and elevated above the surface of the ground, east of it, from two to three inches; that the crossing has a slightly rounding surface; that Main Street, west from the crossing, has a fall of two feet and one inch in a distance of twenty-one feet; that the streets were not paved and the street and dirt were dry; that the intersection of Main and Lake Streets is in the central and thickly settled portion of the town. While there is a conflict in the evidence on the question, there is evidence of several witnesses that, at this intersection and on both sides of the crossing, including the crossing itself, several people were congregated and a large number of people were assembled in that vicinity. One witness says that there were as many as a dozen or fifteen people on the crossing itself; some of defendants' witnesses testify that the sidewalks in the vicinity were thickly covered with people; another witness says, "The street was practically full from Lockwood's up half of the way--standing on the sidewalk and to the west of the sidewalk; that street was full;" there were many children among the people; witnesses say that there was some noise on the south side of the street, some confusion there; "hollering and laughing was going on among the crowd." Under these circumstances, the car in question came from the north and turned west across the cement crossing, striking deceased where she was on the cement walk. There was evidence that the car, in passing over the cement crossing, was a little to the north of the center of the street at the time it struck deceased. The evidence is in conflict as to whether deceased hesitated and stopped before she was struck. Some witnesses say that she did so, while others say "She did not stop and stand still; she was coming right along." Some of the witnesses say that her face was turned a little to the...
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