Fisher v. Ellston

• Decision Date: 19 February 1916
• Docket Number: No. 30274.,30274.
• Citation: 174 Iowa 364,156 N.W. 422
• Parties: FISHER v. ELLSTON.
• Court: Iowa Supreme Court

174 Iowa 364

156 N.W. 422

FISHER

v.ELLSTON.

No. 30274.

Supreme Court of Iowa.

February 19, 1916.

Appeal from District Court, Clarke County; T. L. Maxwell, Judge.

Action to recover for damages for personal injury resulting in death. Verdict and judgment for the plaintiff. Defendant appeals. Affirmed.Miles & Steele, of Corydon, and Temple & Temple, of Osceola, for appellant.

O. M. Slaymaker, of Osceola, and V. R. McGinnis, of Leon, for appellee.

GAYNOR, J.

This action is brought by the administrator of Eva M. Fisher to recover for injuries resulting in her death. It is alleged that on the 14th day of July, 1913, she was riding with her husband in a buggy drawn by one horse and driven by her husband; that she was traveling on a public highway; that she was met by an automobile driven by the defendant; that the horse became frightened at the automobile, became unmanageable, and ran away, throwing deceased from the buggy, resulting in injuries from which she died; that the road on which deceased was traveling ran east and west, and she was proceeding westward; that just west of the point where the horse became frightened there is a public highway running directly north, intersecting this east and west road; that this north highway does not extend south of the east and west road on which deceased was traveling; that the trouble occurred about four rods east of the intersection; that defendant was driving a Ford automobile, coming from the north, and running at a high and dangerous rate of speed; that on reaching the intersection he turned immediately east into the road on which deceased was riding; that from both points of view, from the north road on which defendant was riding, and the east and west road on which deceased was traveling, the view was obstructed, so that neither could see the other approaching the intersection; that as defendant came from the north and approached this intersection he gave no notice or warning of his approach, and, without doing so, turned into the east and west road; that, as defendant passed from the north road on to the east and west road on which deceased was traveling, he came rapidly, and did not stop his automobile until it was within about two rods of the horse behind which deceased was riding; that after turning the corner it ran directly towards the horse before stopping.

Plaintiff specified several grounds of negligence, only two of which were submitted to the jury, to wit: (1) In running of the automobile upon a public highway at a high and dangerous rate of speed; (2) in not sounding the horn or giving the alarm when approaching the east and west road. The defendant's answer was a general denial.

Upon the issues thus tendered the cause was tried to a jury, and a verdict returned for the plaintiff, and, judgment being entered upon the verdict, defendant appeals, and urges:

(1) That the evidence is wholly insufficient to justify a verdict for the plaintiff on either of the grounds of negligence submitted.

(2) That the court erred in submitting to the jury the question of damages occasioned by the death of decedent, for the reason, as it is claimed, there was no evidence offered on the part of the plaintiff on which the jury could find a verdict as to the value of decedent's services to the plaintiff as husband, or to her estate; there being no evidence as to such services or their value.

(3) The court erred in refusing instructions asked by the defendant.

(4) The court erred in submitting to the jury the question of reasonable care and prudence on the part of the defendant in the matter of speed. On this point defendant claims that the statute fixed the rate of speed at which automobiles may be operated, a violation of which alone would be negligence.

(5) The court erred in telling the jury that the negligence of the husband, the driver of the vehicle, should not be imputed to the wife, and in saying to the jury that, in determining whether or not the deceased was guilty of contributory negligence, they should consider her own acts and conduct and all other circumstances shown in evidence, surrounding the accident and injury to her, and if from that they found that she acted as a reasonably prudent person would act under all the circumstances, she could not be charged with contributory negligence.

Upon the first proposition contended for we have to say that there is abundant evidence in the record from which the jury could well have found the defendant guilty of negligence, and that such negligence was the proximate cause of the catastrophe which resulted in the death of Mrs. Fisher.

[1] Section 19 of chapter 72, Acts 34th Gen. Assem., provides that a person operating or driving a motor vehicle shall, upon approaching a branch or intersecting highway, or a curve, or a corner, or other place in the highway where the operator's view is obstructed for a distance of 200 feet or less, shall slow down, and give a timely signal with his bell or horn or other device for signaling. This statute imposes upon one using an automobile on a public highway an affirmative duty. A failure to discharge this duty is negligence. It is made for the safety of the general traveling public, and, where injury results to one as the proximate result of such failure, he has a right of action against the wrongdoer based upon such negligence. All negligence presupposes a duty. It may be a duty imposed upon one by law, or one arising from contract, or due to peculiar personal relationship. It may be owing to an individual or to the public generally. He who suffers harm, without fault on his part, through the omission of one charged with a duty, may recover for the injury sustained. The evidence shows that defendant's view was obstructed for a considerable distance from a point on the north road. There is evidence that he came at a rapid rate of speed. There is evidence that he gave no signal of his approach. There is evidence to justify a jury in finding that he violated the duty imposed upon him by this statute. No good purpose would be served in reviewing this evidence.

[2] The rule has been so frequently announced in this court that, where the evidence before the jury, and upon which they are required to act, is of such a character that honest minds searching for the truth as to the ultimate fact upon which negligence is predicated might reasonably and fairly differ as to whether the evidence establishes the ultimate fact, then it is a question for the jury under proper instructions, and their finding is conclusive upon the court.

[3] Defendant's first contention cannot be sustained. Further than this, section 20 of chapter 72 of the Acts of the Thirty-Fourth General Assembly provides:

“Every person operating a motor vehicle on the public highways of this state shall drive the same in a careful and prudent manner, and at a rate of speed so as not to endanger the property of another, or the life or limb of any person: Provided, that a rate of speed in excess of twenty-five miles an hour shall be presumptive evidence of driving at a rate of speed which is not careful and prudent in case of injury to the person or property of another.”

This statute makes 25 miles presumptive evidence that the vehicle was not being driven at a rate of speed which is careful and prudent. At any point on a road where injury results conditions may arise, and do arise, where a lesser speed than that would negative the idea of care and prudence in the driving. This is manifest in the provisions of section 19 above referred to: Where one is approaching a branch or intersecting highway, or a curve or a corner; where the operator's view is obstructed, and in the very nature of things the speed may be neither careful or prudent, although less than 25 miles an hour.

Here in this case the defendant was coming from the north, approaching a public highway that intersected the road on which he was driving, extending both to the east and to the west. He had either to turn to the right or to the left to proceed upon his journey. He entered upon this east and west road. His view was obstructed. This east and west road was open to public travel. The defendant was familiar with both roads; had traveled over them frequently. He knew of these obstructions to his view, and yet, the evidence tends to show, he swung around this corner to the east at a rate of speed approximately 20 miles an hour, and this without any timely signal with his bell or horn or other device. He failed to discharge his legal duty, and therefore is rightly charged with negligence.

[4] It is next contended that the evidence does not show that the action of the defendant was the proximate cause of the injury complained of. The evidence of the husband, who was driving the horse, is to the effect that, when he discovered the automobile coming around the corner, he reined in the horse; that she immediately became frightened and reared up; that he reined her down; that she reared the second time, threw the front part of the buggy high in the air; that the automobile was then coming around the corner facing the horse, and directly in front of the horse, about three rods east of the corner, and about two rods from where the horse and buggy were; that the horse suddenly turned eastward, ran about a quarter of a mile east to a low point in the road where there was a culvert; that at that point the wife was thrown out and received the injuries from which she died. These facts being proven, the jury could...