Faatz v. Sullivan
| Decision Date | 17 October 1924 |
| Docket Number | 35960 |
| Citation | 200 N.W. 321,199 Iowa 875 |
| Parties | FRANCIS FAATZ, Appellee, v. JAMES M. SULLIVAN, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 21, 1925.
Appeal from Dubuque District Court.--D. E. MAGUIRE, Judge.
ACTION by a child of eight years, by his next friend, to recover for damages sustained by reason of his being struck by an automobile which was being operated by the son of the defendant. Various grounds of negligence in the operation of the automobile are alleged. The jury returned a verdict for the plaintiff, and the defendant appeals.
Reversed.
Hurd Lenehan, Smith & O'Connor, for appellant.
Kintzinger & Stuart and Kenline, Roedell & Hoffmann, for appellee.
The accident in question occurred about one o'clock in the afternoon on the 26th day of October, 1921. Appellee at that time was a boy about eight years of age, and was on his way to school. The accident occurred near the intersection of Central Avenue and Fifteenth Street, in the city of Dubuque. Central Avenue extends north and south, and is intersected by Fifteenth Street at right angles. Just before the accident occurred, appellee was walking with another lad on the south side of Fifteenth Street, and crossing Central Avenue. He left the sidewalk on the east side of Central Avenue, and walked with the other boy westerly. There are two street car tracks running north and south on Central Avenue. When the two children had reached a place approximately at the east rail of the east track, appellee looked in the direction of the approaching car, and suddenly turned and ran back across the street and upon the sidewalk on the east side of the street, which he had just previously left. Appellant's car was being driven by his son, a high school student, about twenty years of age, and was going north on the east side of Central Avenue, approaching the intersection with Fifteenth Street. At or about the time appellee ran back to the sidewalk, the driver of the car diverted the course of the car to the right, which headed it in a northeasterly direction. The right wheel of the car passed over the curb, and appellee was struck after he had reached the sidewalk. The car advanced to the northeast, and came in collision with a telephone pole. Appellee suffered a fracture of the skull from the collision, with resulting pain and suffering.
There is conflict in the evidence with regard to the speed of the car as it approached the intersection of the streets. Central Avenue is forty feet wide between the curbs, and the curbing over which the automobile passed is nine inches high. There was evidence tending to show that the driver applied the foot brake to the car, but not the emergency brake, and sounded the horn, and that the car skidded for some distance upon the street and sidewalk before it came into collision with the telephone pole. There was no motion for a directed verdict in behalf of appellant. Therefore, we consider only the errors of law relied upon for reversal.
I. Error is predicated on the ruling of the court in permitting a witness to testify in regard to the ownership of a store building by the father of appellant. The matter arose in this wise. A witness for appellee testified that appellant's wife, who was in the car at the time of the accident, asked him to call her husband, and told him to get him at the Peoples Store. On cross-examination, appellant's counsel asked this witness: "You knew Mr. Sullivan wasn't interested in the Peoples Store, didn't you?" and the witness answered: "I couldn't tell you."
Later on, Mrs. Sullivan testified as a witness for appellant. On cross-examination, she was asked where she told the man he could find her husband, and replied that she told him her husband might be found on the roof of the Peoples Store. She was then asked this question: "Your husband owns that building?" The question was objected to as irrelevant and immaterial, the objection was overruled, and the witness answered: "He does."
The objection to the last question should have been sustained. However, appellant's counsel first introduced the subject-matter of the ownership of the Peoples Store, by the cross-examination of the witness Sinhold. The matter arose incidentally, in connection with the testimony respecting the summoning of appellant. We cannot reverse for this error, arising in this manner.
II. Error is claimed in the overruling of objections to a map which was offered in evidence, and which appears to have been made by an expert, and in permitting the witness to testify with regard to distances to certain school buildings that were not in the direct line of travel of the car.
There was no error in these rulings. The proper foundation was laid, the witness was competent, and the map was admissible. It had on it a mark indicating the point where the automobile left the curb, and this witness testified that he placed the mark there from information which he had received regarding this spot. But other evidence in the case shows that the mark was placed at the correct place on the map. Under these circumstances, there was no reversible error in receiving this evidence. The testimony with regard to the location of the various school buildings in the vicinity of the accident was proper, under the circumstances of the case.
III. Error is urged in the overruling of appellant's objections to certain photographs offered by appellee.
It appears that the photographs were not taken at or about the time of the accident, but were taken subsequently. The photographs show the buildings at the intersection of the streets where the accident occurred. The evidence shows that the photographs were correctly taken, and that there had been no change in the conditions of the buildings and streets surrounding the intersection between the time of the accident and the taking of the photographs. The fact that there was snow on the ground when the photographs were taken and none at the time of the accident did not render them inadmissible, under the proved facts.
We find no error in overruling the objections to these photographs.
IV. Error is predicated upon the refusal of the court to give Instruction No. 2, requested by appellant, as follows:
The thought of this instruction was not embodied in any instruction that was given by the court.
The undisputed evidence in the case shows that the boy, with his companion, had left the sidewalk and had traversed the street to the street car rail, entirely past the pathway of the approaching automobile. He was apparently, with his companion, proceeding on his way across the street to the west. The undisputed evidence also shows that, at that time, and when in that position, he observed the approaching car, which was distant then some fifty feet. The driver of the car also saw appellee in this position at that time. Now, in determining the question as to whether or not, from that time on, the driver of the automobile conducted himself like a man of ordinary prudence and caution, the jury should have been told that he had a right to assume that appellee, having reached a place of safety, and being outside the pathway of the approaching car, would either remain in such place of safety or continue on his journey to the west. This is the ruling of our cases.
In Borland v. Lenz, 196 Iowa 1148, 194 N.W. 215, a case where a child between five and six years of age walked out to the center of the street in front of an approaching car, and then suddenly retraced his steps and was struck by the car, we said:
We also said:
The cases are reviewed at length in the Borland decision, and it is approved in Brekke v. Rothermal, 196 Iowa 1288, 196 N.W. 84. See, also, Long v. Ottumwa R. & Lt. Co., 162 Iowa 11, 142 N.W. 1008.
Whether or not the driver of the car acted like a man of ordinary prudence and caution...
To continue reading
Request your trial