Dulansky v. Iowa-Illinois Gas & Electric Co.

• Decision Date: 25 October 1951
• Docket Number: No. 14288.,14288.
• Citation: 191 F.2d 881
• Parties: DULANSKY et al. v. IOWA-ILLINOIS GAS & ELECTRIC CO.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F.2d 881 (1951)

DULANSKY et al. v. IOWA-ILLINOIS GAS & ELECTRIC CO.

No. 14288.

United States Court of Appeals Eighth Circuit.

October 25, 1951.

Walter A. Newport and Donald A. Wine, Davenport, Iowa (Wayne G. Cook and Newport, Bybee & Wine, Davenport, Iowa, were with them on the brief), for appellants.

Larned A. Waterman, Davenport, Iowa (Charles D. Waterman, Otto C. Bauch and Lane & Waterman, Davenport, Iowa, were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a summary judgment entered on motion of defendant (appellee) in an action brought by plaintiffs (appellants) to recover damages on account of the death of Gary Dulansky, plaintiff's minor son, caused by the alleged wrongful act of defendant. Omitting formal allegations and allegations not here material, it is alleged in the complaint that Gary Dulansky, the ten-year-old son of plaintiffs Paul Dulansky and Bonnie Dulansky, was on December 1, 1948, proceeding west on East Elm Street in the City of Davenport, Iowa, on a bicycle in a cautious and careful manner, when a bus operated for defendant by Leonard W. Hughes approached plaintiffs' intestate from the rear and due to the negligence of defendant's operator collided with and struck plaintiffs' decedent, knocking him and his bicycle to the pavement and inflicting injuries upon him from which he died on said date; that the defendant, a corporation, was operating a bus line in the City of Davenport, Iowa; that the death of plaintiffs' minor son was the direct and proximate result of the negligence of defendant's operator in operating the bus in a reckless and careless manner, in failing to keep a proper lookout and observe plaintiffs' decedent in time to avoid striking him, in failing to give any audible warning signal by bell or horn that defendant's bus was approaching plaintiffs' decedent from the rear, in failing to take due precautions for the protection of decedent after the operator knew or should have known of the presence of said child on said street, in not having his bus under control as he approached said minor child and in not bringing said bus under control when passing said child and in causing the bicycle on which said child was riding to be thrown to the street, in operating the bus at an excessive rate of speed and failing to reduce the speed after seeing plaintiffs' decedent riding a bicycle in the street and in passing or attempting to pass said decedent, and in not operating the bus in such a manner and at such a speed as to be able to stop within the assured clear distance ahead. Defendant by its answer put in issue the charge of negligence, and pleaded contributory negligence of the child and of the plaintiffs.

Defendant interposed a motion for summary judgment on the ground that the claim of plaintiffs involved no genuine issue as to any material fact and that defendant was entitled to a judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. In support of its motion defendant submitted transcript of the testimony taken before the coroner's jury at an inquest involving the question of the death of Gary Dulansky, affidavit of Leonard W. Hughes, operator of the bus, affidavit of Andrew Nielson, the sole passenger on the bus at the time of the accident, and the affidavit of two physicians. The plaintiffs likewise submitted affidavits of certain physicians, affidavits of themselves, and affidavit of one of their attorneys, and they too relied upon the transcript of the testimony submitted at the coroner's inquest. There were also submitted answers to certain interrogatories, and possibly other documentary evidence.

The accident occurred late in the afternoon of December 1, 1948. While the bus was traveling in a westerly direction along Elm Street the driver noticed the boy, Gary Dulansky, riding his bicycle, also going in a westerly direction, some distance ahead of the bus and the operator of the bus in his testimony before the coroner's jury, said: "I seen this boy go on the bridge and I watched him and he was riding his bicycle in an unsteady manner."

At the time of the accident the boy was wearing an aviator's leather helmet, covering his entire head except his face. The street was about thirty feet in width; the bus weighed 10,150 pounds, was twenty-six feet, five inches long, and approximately seven feet, ten inches in width. The speedometer on the bus was not working but the operator estimated that he was driving at a speed of eighteen miles per hour as he approached the place where he attempted to pass the boy. The bus and the boy, as they moved westwardly, crossed a bridge. As the bus left the west end of the bridge the operator accelerated its speed preparatory to passing the boy on the bicycle. The relative positions of the boy and the bus in the street are in some dispute. The driver of the bus did not honk his horn but as the front of the bus drew up to a point opposite the rear of the bicycle the front of the bicycle tipped sharply toward the bus. Immediately previous to this the boy was coasting, not pedaling. As the driver of the bus started to pass the boy he observed that the boy had swerved to the left so as to be ahead of the bus and was looking backward over his left shoulder directly toward the head end of the bus. Observing this, the operator of the bus turned sharply to the left and applied the air brakes. This so suddenly impeded the speed of the bus that the lone passenger, with difficulty, by holding onto the back of the driver's seat, saved himself from being thrown clear across the bus, and there was noise from the skidding of the wheels on the pavement. The driver testified at the coroner's inquest that: "I felt them (the tires) skid and then they took ahold and threw me to the south curb."

In giving his version of how the accident happened the driver in his testimony said: "My version is, from the way that bicycle fell, that when that bus came up in the middle of the street, he was facing south when I went past him, directly south, and I think he lost all sense of motion, balance and everything else when that big bus started whizzing past him and he came to a complete stop with his front wheel cramped like that and it looked like he fell back into the street and struck his head."

The sole passenger, Andrew Nielson, in his testimony among other things said: "We'd just gotten over the viaduct there on Elm Street and I saw a boy on his bicycle — appeared right out in front of this bus, not all the way in front of it but a little to the right, you understand, and the bus operator swung that bus to the left and almost threw me out of my seat, the way I was sitting there with my feet on the floor and ahold of the back of the operator's seat — that saved me from being thrown clear across the bus, but when he did that he saved this boy, I think, from getting under the wheels of that bus, and he almost hit the curb."

In answer to an inquiry whether or not he had heard any impact this witness said: "Nothing like that, no. I had — my own opinion is, if you want that — I can't see how the boy fell hard enough to fracture his skull, just from falling off a bicycle, wearing that helmet, you know, but then I am no authority on those things."

Although the bus driver testified that he was sure he did not hit the boy, when he stopped the bus he got out and went back there and found the boy lying on the pavement, blood coming from his ears, nose and mouth. He was later taken to the hospital and died almost immediately on arriving there. The medical testimony was to the effect that he...