Dice v. Johnson

• Decision Date: 15 December 1919
• Docket Number: 32841
• Citation: 175 N.W. 38,187 Iowa 1134
• Parties: CLARA BELLE DICE, Administratrix, Appellee, v. HAZEL K. JOHNSON, Appellant
• Court: Iowa Supreme Court

175 N.W. 38

187 Iowa 1134

CLARA BELLE DICE, Administratrix, Appellee, v. HAZEL K. JOHNSON, Appellant

No. 32841

Supreme Court of Iowa, Des Moines

December 15, 1919

Appeal from Cedar Rapids Superior Court.--ATHERTON B. CLARK, Judge.

ACTION for damages for wrongful death. There was a verdict and judgment for the plaintiff for $ 13,500. The defendant appeals.--Reversed and remanded.

Reversed and remanded.

B. L Wick, Redmond & Stewart, and Grimm, Wheeler, Elliott & Jay for appellant.

Johnson Donnelly & Swab, for appellee.

EVANS, J. LADD, C. J., PRESTON and SALINGER, JJ., concur.

OPINION

EVANS, J.

The fatal accident involved herein occurred on E Avenue in the city of Cedar Rapids, in the afternoon of the 15th day of September, 1917. The defendant, a young woman, was driving west in a roadster automobile. The decedent, a young man 18 years of age, was driving east upon his bicycle. A collision resulted between the automobile and the bicycle, whereby the young man was fatally injured, dying, as a result of his injuries, a few days later. The evidence is in direct conflict, both as to the respective speeds of automobile and bicycle, and as to which side of the center line of the street was the place of the collision. The speed limit on this avenue was 15 miles an hour. Under the ordinance, this, in terms, applied to motor vehicles. The testimony for plaintiff tended to show that the defendant was driving in excess of the speed limit, and that she was driving on the left side of the street when the collision occurred. The testimony for the defendant contradicted the foregoing, and tended to show that the decedent was exceeding the speed limit, and was driving on the left side of the center line of the street. E Avenue ran east and west. The north side thereof, therefore, was the right side for the defendant, and the south side was the right side thereof for the decedent.

One of the grounds laid by appellant for reversal is that, while the trial court instructed the jury that, if the defendant was driving on the wrong side of the street, without justifiable reason at the time of the collision, or was exceeding the speed limit of 15 miles an hour, she would be guilty of negligence. The court failed and refused to apply to the decedent the same criterion of negligence. That is to say, it refused to instruct that, if the decedent was driving on the wrong side of the street without justifiable reason, or if he was driving at a rate of speed in excess of 15 miles an hour, he would be, prima facie, guilty of negligence.

The court did instruct that it was incumbent upon the plaintiff to show that the decedent was not guilty of contributory negligence, and did instruct that it was incumbent upon the decedent to exercise ordinary care. But no criterion was laid down as to what would constitute negligence on the part of the decedent, nor was there anything in the instructions from which the jury could understand that, if the decedent was driving on the wrong side of the street at the time of the collision, he would be deemed in law prima facie negligent. The matter thus omitted from the court's instructions was brought to its attention by a requested instruction. The requested instruction was not a correct one in its entirety, in that it incorporated other statements not proper to go to the jury.

The ordinances introduced in evidence related, in terms, to motor vehicles. The instruction as given is defended by the appellee, on the ground that a bicycle is not a motor vehicle. This was doubtless the ground upon which the court made the distinction in the instructions as to the respective duties of the two parties to the collision. If the point thus raised by appellant is tenable, the nature of it is such as to impose upon the court the duty, in the first instance, of applying reciprocal rules or criteria for the determination of the question of the negligence of the respective parties to the collision. If this were doubtful, we think, also, that the point was sufficiently brought to the attention of the court to require its consideration, even though the requested instruction contained matters not proper. The question whether the decedent should be deemed prima facie negligent, if he was traveling on the wrong side of the road, is one which is not controlled by the city ordinance. The law of the road in that regard is co-extensive with the state, and is determined by the statute. Code Section 1569. This statute has been repeatedly applied alike to all vehicles, even the horse-drawn vehicle. Riepe v. Elting, 89 Iowa 82, 85, 56 N.W. 285; Cook v. Fogarty, 103 Iowa 500, 503, 72 N.W. 677; Needy v. Littlejohn, 137 Iowa 704, 710, 115 N.W. 483; Turner v. Bennett, 161 Iowa 379, 142 N.W. 999; Herdman v. Zwart, 167 Iowa 500, 149 N.W. 631.

We deem it clear that this criterion of prima-facie negligence on the part of the decedent should have been given to the jury.

If the decedent were found to exceed the speed limit, a somewhat different question is presented. The ordinance applies, in terms, to motor vehicles. A bicycle is not within the statutory definition of a motor vehicle. Section 1571-m1 Code Supplement, 1913. The general policy of the statute and the ordinances fixing speed limits is to prevent the propulsion of vehicles over the highways at excessive speed. The ordinances in force in different parts of the state vary in their speed regulations from 10 to 30 miles an hour. There is little occasion for applying such ordinances, either in terms or by construction, to horse-drawn vehicles, because ordinarily the minimum speed of the ordinance is beyond the maximum of the horse. This is not true of the bicycle. If it be prima-facie negligence, as a matter of law, because of breach of the ordinance, to propel a motor vehicle at a greater speed than 15 miles an hour within a particular zone, it would seem to follow, of logical necessity, that it would...