Ege v. Born, 40780.

• Decision Date: 10 April 1931
• Docket Number: No. 40780.,40780.
• Citation: Ege v. Born, 212 Iowa 1138, 236 N.W. 75 (Iowa 1931)
• Parties: EGE v. BORN ET AL.
• Court: Iowa Supreme Court

212 Iowa 1138

236 N.W. 75

EGE

v.BORN ET AL.

No. 40780.

Supreme Court of Iowa.

April 10, 1931.

Appeal from District Court, Dubuque County; D. E. MaGuire, Judge.

Action brought by the plaintiff administrator to recover damages for personal injury causing the death of plaintiff's intestate; it being alleged in the petition that said injury was caused by the negligence of the defendant Born in driving an automobile which was owned by the defendant La Prell. Trial to the court and a jury. Verdict and judgment thereon for the plaintiff. The defendants appeal.

Affirmed, on condition.Kenline, Roedell, Hoffmann & Tierney, of Dubuque, for appellants.

John J. Kintzinger, of Dubuque, for appellee.

WAGNER, J.

The plaintiff is the administrator of the estate of Wilhelmina Ege, deceased, who, on November 11, 1929, died as the result of injuries received by her two days before in the collision of an automobile driven by the defendant Born with a light spring wagon driven by the decedent. The defendant La Prell owned and operated two butcher shops in the city of Dubuque, one at No. 1278 Central avenue and the other at No. 2710 Jackson street. Born was employed by La Prell as a delivery boy. Shortly after noon on November 9th, Born was directed by La Prell to take some meat from the shop located on Central avenue to the one on Jackson street. There is no question that Born had authority to use the car for the delivery of the meat. Jackson street runs north and south, and, in going north on said street and before getting to the butcher shop situated thereon, to which he was to make the delivery of the meat, he was stopped by a policeman on a motorcycle for speeding. Born then requested the officer to test the speedometer, and the officer consented to assist him in making the test. After the delivery of the meat, Born, in the automobile, and White, the officer, to the left, on a motorcycle, proceeded north on Jackson street to make the test of the speedometer. As stated, this test was made at the request of Born. The officer told Born to inform him when the speedometer showed a speed of 20 miles an hour, which was done, and there was found to be a discrepancy between the speedometer and the true rate of speed of 3 miles per hour. As they proceeded, Born was told by the officer to inform him when the speedometer registered 25 miles per hour, and, as they proceeded up the street between Twenty-Eighth and Twenty-Ninth streets the car driven by Born collided with the spring wagon or buggy of decedent, also being driven north, and the decedent was thrown from the spring wagon to the pavement next to the curbstone on the right side of the street and received injuries as the result of which she died two days later. The officer testified, without objection, “Born said he saw the buggy just too late to avoid hitting it; he said he was looking at his speedometer.” The pavement on Jackson street is 40 feet wide between the curbstones. The officer testified that, as the decedent proceeded north, the wheels on the right side of the buggy were approximately 3 feet from the right-hand curb. The street is one largely traveled, and the accident occurred in a thickly populated portion of the city; there being a number of residences on the right side of the street and a floral shop on the left side. According to the record, there was ample room between the officer on the left and the buggy to enable Born to safely pass the buggy. It was a bright clear day; there were no distracting circumstances--nothing to obscure the view and prevent Born from seeing the buggy, which was plainly visible and in the direct line of his vision immediately in front of him. Born testified that, as he was going north, “I was watching the street, the speedometer and the officer. * * * From where we had the talk about the speed to within about eight feet from the buggy, I was watching the speedometer but before that time I was watching the street, the speedometer and the officer.”

[1][2][3][4][5][6][7] The plaintiff, in his petition, alleges that defendants were negligent in the following particulars: “(1) In failing to pass the horse and buggy of plaintiff's intestate without striking said buggy. (2) In failing to have his automobile under proper control so that he was able to stop before hitting the buggy of plaintiff's intestate. (3) In failing to keep a lookout for vehicles traveling ahead of him and to prevent collision therewith. (4) In failing to see plaintiff's intestate and the horse and buggy ahead of him until just before striking the same. (5) In testing out his speedometer at the time and place in question without having due regard to the traffic and the then existing conditions on Jackson Street.” The defendants moved to strike each of said grounds of negligence from the petition, for the reason, as claimed by them, that said allegations are only statements of incompetent opinions and conclusions. They also moved to withdraw the same from the consideration of the jury. Said motions were overruled, and each of said grounds of negligence was submitted to the jury. It is the contention of the appellants that the court erred in the aforesaid rulings. They rely upon our pronouncement in Cooley v. Killingsworth, 228 N. W. 880, 883. We there held it to be error for the court to submit to the jury as a ground of negligence the general allegation “that the driver operated and drove the automobile without regard for the rights and safety of the lives and property of others rightfully upon and using said highway,” and that, while said allegation follows, in a general way, the language of section 5028, Code 1927, it is too general and indefinite to be the basis for the right of recovery when attacked by motion. Our holding in said case is not authority for the contention of the appellants in the instant case. If, in the first ground of negligence alleged, the pleader had stated that the driver failed to turn his automobile to the left a sufficient distance to enable him to pass the vehicle in which the decedent was riding, it would hardly be contended that the allegation is a statement of a mere conclusion, and yet this is virtually the equivalent of the allegation contained in the petition. The statements that the driver failed to pass the horse and buggy without striking same; that he failed to have his automobile under proper control; that he failed to keep a lookout for vehicles traveling ahead; that he failed to see plaintiff's intestate and the horse and buggy ahead of him; and that the testing of his speedometer in the manner stated at the time and place in question constituted negligence--are sufficient statements of ultimate facts. Any failure to exercise ordinary care, that is, such care as an ordinarily careful and prudent person would exercise under the same, or similar circumstances relative to any one of the aforesaid particulars charged in the petition would constitute negligence, and the court so instructed. The court was not in error in refusing to strike said allegations from the petition. The record contains evidence in support of each of the aforesaid grounds of negligence; therefore the court was not in error in refusing to withdraw the same from the consideration of the jury.

[8] The appellants further contend that the court should have sustained their motion for a directed verdict on the ground that the decedent was, as a matter of law, guilty of contributory negligence. It is their contention that, at the time in question, she was driving contrary to the provisions of an ordinance of the city, which provides: “Slowly moving vehicles shall keep as close as possible to the right hand curb so as to allow more swiftly moving vehicles free passage to the left.” There is evidence from which the jury could properly find that, at the time in question, the wheels on the right side of the buggy were 3 feet from the curb, and that there was ample passageway to the left of the vehicle which she was driving. There was no error in the overruling of the motion for a directed verdict.

[9][10][11] The appellants complain because the court in one of the instructions stated that the duty to use ordinary care to observe automobiles and other vehicles ahead also implies the duty to see automobiles and other vehicles which are plainly visible. It is their contention that this instruction is erroneous because, as claimed, it imposed upon the driver of the car the absolute duty to see the vehicle driven by the decedent. In Holderman v. Witmer, 166 Iowa, 406, 147 N. W. 926, 928, we said: “The duty to look implied the duty to see what was in plain view, unless some reasonable explanation is presented for a failure to see.” In Smith v. Spirek, 196 Iowa, 1328, 195 N. W. 736, 739, we said: “When the defendant saw, or with reasonable diligence could have seen, the decedent in time to so operate his car as to avoid the accident, it became his duty to so act.” The physical facts are such that, if the driver of the automobile had looked, he must have seen the vehicle in which the decedent was riding, which was immediately ahead of him. In the instant case, no reasonable explanation, in fact, no explanation, is offered for the driver's failure to see. It was a bright clear day and nothing to becloud the vision of the driver. There was no sudden emergency and no distracting circumstance, unless it be the testing of the speedometer, and this circumstance was of his own voluntary making. A diverting or distracting circumstance, self-induced or of one's own voluntary making, is not sufficient to excuse him for failure to see what he must have seen had he looked. Bender v. Town of Minden, 124 Iowa, 685, 100 N. W. 352;Cutshall v. City of Keokuk, 185 Iowa, 808, 169 N. W. 677. Although he was at the time engaged in the testing of the speedometer, yet he was voluntarily propelling the automobile along the highway, and it became his duty in so doing to keep a...