Crutchley v. Bruce

• Decision Date: 12 January 1932
• Docket Number: No. 41030.,41030.
• Citation: 240 N.W. 238,214 Iowa 731
• Parties: CRUTCHLEY v. BRUCE.
• Court: Iowa Supreme Court

214 Iowa 731

240 N.W. 238

CRUTCHLEY

v.BRUCE.

No. 41030.

Supreme Court of Iowa.

Jan. 12, 1932.

Appeal from District Court, Johnson County; R. G. Popham, Judge.

Suit to recover damages for death of plaintiff's intestate, a boy about eight years of age, who was killed by an automobile driven by defendant. Verdict for plaintiff, and defendant appeals.

Reversed.

MORLING and KINDIG, JJ., dissenting.Longley, Ransier & Frank, of Waterloo, for appellant.

Frank F. Messer, of Iowa City, for appellee.

FAVILLE, J.

There is a paved highway between Cedar Rapids and Iowa City. The paving is 18 feet in width. At the place of the accident involved in this case, the road extends in a northwesterly and southeasterly direction. About three or four miles northwest of the town of North Liberty a country road crosses said highway at a place known as Young's crossing. The crossing is not obscured. There is a wide curve as the road swings to the northwest near the crossing, but there is not a sharp curve or turn. There are no trees, buildings, or other obstructions along the highway at or near the crossing. Near the intersection of the paved highway and the country road there is a platform for milk cans, and a mail box called “the Crutchley mail box” on the north side of the paved highway. Some 600 feet northwest of the Crutchley mail box is another milk can platform and a mail box called “the Brender mail box,” both located on the south side of the paved highway.

On the morning in question, appellee's intestate, a boy nearly eight years of age, came from his house, about 90 rods north and east of Young's crossing, to the Crutchley mail box to meet the driver of a milk truck and get a milk check. The boy came to the paved highway, and later was joined by the Brender boy, who was about seven years of age. The two boys went to the Brender mail box, where they met the milk truck, which then went east to the Crutchley mail box. The driver of the milk truck gave the two boys permission to ride on the back of the milk truck among the milk cans. The boys got in the truck on their knees, with their hands on the milk cans, and in this way rode back to a point nearly opposite to the Crutchley mail box, where the driver stopped the milk truck on the south side of the highway, with the two right wheels off the paving and the two left wheels on the paving. Not quite half the milk truck was off the paving apparently.

The milk truck had a cab in front in which the driver rode, and a platform to the rear on which the milk cans were carried. The sides of this platform were 12 inches high and the platform extended about 7 feet back from the cab, and the end was about 2 feet back of the rear wheels. When the driver stopped the milk truck, he alighted from the cab and stepped down on the paving on the north side of the truck to untie a rope that held the milk cans on the platform. As this milk truck stopped, a cattle truck that had been following it turned out to the left and passed the milk truck and proceeded east.

At this juncture, the appellant's car approached from the east. The appellant's car turned to the right to avoid the cattle truck, and, in so doing, was partially off the paving, on the shoulder of the road. The car then swung back upon the paving and proceeded past the standing milk truck. Just at the instant when appellant's automobile was opposite the rear end of the milk truck, the appellee's intestate jumped or stepped directly in the path of appellant's car, and was struck and killed instantly.

Appellant is a traveling salesman and is an experienced automobile driver. At the time of the accident, he was driving from Iowa City to Cedar Rapids. His car was a Hudson supersix coach. Appellant's wife and a Mrs. Shannon were in the rear seat of appellant's car. In the front seat with the appellant were his son, then seven years of age, and the son of Mrs. Shannon, then ten years of age.

Appellant moved for a directed verdict both at the close of appellee's evidence and at the close of all the evidence. The motion was overruled, the cause was submitted to the jury, and a verdict for $2,500 for the appellee was returned.

The court withdrew from the jury all grounds of negligence except the following:

“1. In operating his automobile in a careless and imprudent manner and at a rate of speed that endangered the life of the decedent.

2. In operating his automobile at a greater rate of speed than provided by Sec. 5029 of the Code of 1927.

3. In not having and keeping his automobile under control and in not reducing the speed to a reasonable and proper rate as was required by law.

4. In failing to sound a bell, horn or other signalling device as a warning of the approach of his automobile.”

Sixty-seven alleged errors are relied on for reversal. It will not be necessary for us to consider all of them in this opinion.

I. At the time of the accident, to wit, April, 1929, section 5029 of the Code of 1927 was in force, and it prohibited driving a motor vehicle on the highways of this state at a greater speed than forty miles per hour.

One of the specifications of negligence alleged was that appellant was operating his automobile at a greater speed than provided in said statute.

Appellant testified that, as he approached the place of the accident, he was driving “around forty-five to fifty miles per hour.” The important question at this point is whether or not the speed of appellant's car was the proximate cause of the injury to appellee's intestate.

[1][2] We had a similar question before us in Pettijohn v. Weede, 209 Iowa, 902, 227 N. W. 824, and in McDowell v. Interstate Oil Co., 208 Iowa, 641, 224 N. W. 58, wherein we held that, even though the automobile which caused the injury was being driven at an excessive or unlawful speed, this would not justify recovery, unless it appeared that such excessive speed was the proximate cause of the injury. Even though the driver of an automobile may violate the law in some particular, still this cannot be made the basis of recovery by an injured party, unless the illegal act was in some way the proximate cause of the injury. For example, a driver might not have his car properly equipped with brakes in good order, as required by the statute, but still, unless such failure was in some way the proximate cause of an injury, it could not be made the basis of recovery. As bearing on the question of excessive speed not being a ground of recovery when not shown to be the proximate cause of the injury, see Silberstein et al. v. Showell, Fryer & Co., 267 Pa. 298, 109 A. 701;McAvoy et al. v. Kromer et al., 277 Pa. 196, 120 A. 762;Bowman et al. v. Stouman, 292 Pa. 293, 141 A. 41;Havermale v. Houck, 122 Md. 82, 89 A. 314;Moran v. Smith, 114 Me. 55, 95 A. 272;Sorsby v. Benninghoven, 82 Or. 345, 161 P. 251;Winter v. Van Blarcom et al., 258 Mo. 418, 167 S. W. 498;Burlie v. Stephens et al., 113 Wash. 182, 193 P. 684. In the instant case, the accident would have happened just as readily had appellant been driving his car at a much less rate of speed and well within the statutory limit. It was not the speed of appellant's car that was the proximate cause of the injury to the boy.

II. The court also submitted to the jury as a ground of negligence the failure of appellant to sound a bell, horn, or other signaling device, as a warning of the approach of his automobile.

There was evidence that the appellant sounded his horn as he approached and was about to pass the standing milk truck. There was negative evidence of witnesses for appellee that, being in a position to hear such a signal, they did not hear any.

[3][4] We are constrained to hold that under the circumstances disclosed in this record it cannot be held that the failure of the appellant to sound his horn, if the jury could find that he failed so to do, was the proximate cause of the injury to the boy. Nor can we hold that under the circumstances disclosed any duty rested upon the appellant to sound his horn as he was about to pass the standing milk truck. In broad daylight the appellant was approaching a standing milk truck, on the proper side of the highway and partly off the paved portion. The driver of the truck was standing beside it. There was not the slightest thing to indicate to the driver of the automobile in any way that a boy was among the milk cans on the rear portion of the truck, or near there, and that he might suddenly dash into the path of appellant's automobile. A driver could not reasonably be expected, under such circumstances, to anticipate that a person might so appear suddenly in his path, and hence be required to give a signal of his approach. It cannot be said that a person...