Flickinger v. Phillips

• Decision Date: 12 May 1936
• Docket Number: 43358.
• Citation: 267 N.W. 101,221 Iowa 837
• Parties: FLICKINGER v. PHILLIPS.
• Court: Iowa Supreme Court

267 N.W. 101

221 Iowa 837

FLICKINGER v. PHILLIPS.

No. 43358.

Supreme Court of Iowa.

May 12, 1936

Appeal from District Court, Plymouth County; R. G. Rodman, Judge.

An action for damages for personal injuries resulting from an automobile accident. A verdict was returned for the plaintiff awarding him $1. From a ruling sustaining exceptions to instructions and granting a new trial, the defendant appeals.

Affirmed.

Roseberry & Pitts, of LeMars, and Putnam, Putnam, Fillmore & Putnam, of Des Moines, for appellant.

Mark W. Bancroft and C. D. Meloy, both of Cherokee, for appellee.

ANDERSON, Justice.

This is an action to recover damages for personal injuries resulting to Wayne Allen Flickinger, a minor, by reason of being hit by an automobile owned and operated by the defendant. The injured boy was ten years of age and the accident occurred on one of the public streets in the city of Cherokee, Iowa. The boy was delivering papers in the late afternoon of the day of the accident and was crossing a street in a diagonal course near the middle of a block in a southwesterly direction. He had reached the center of the street or thereabout when he heard the sound of defendant's horn behind him. He continued his course, however, and accelerated his speed and reached the ditch on the south side of the street when he was run into by the defendant's automobile. The record shows that he was quite severely injured, but at the time of the trial had practically recovered from such injuries. However the boy's arm was severely cut and bruised and quite a severe infection resulted requiring treatments of a physician for several weeks following a few days in a hospital after the accident.

After the overruling of a motion for a directed verdict, the case was submitted to a jury which returned a verdict for the plaintiff in the sum of $1. Defendant's motion for judgment notwithstanding the verdict was overruled and plaintiff's motion for a new trial and exceptions to instructions were sustained by the court and a new trial granted. The defendant appeals.

It is insisted by the appellant that his motion for a directed verdict should have been sustained and that therefore the court abused its discretion in sustaining appellee's plaintiff's, motion for a new trial. With this contention we cannot agree. The motion for a directed verdict was based on (1) the insufficiency of the evidence to warrant a submission of the case to the jury; (2) that there was not sufficient evidence of negligence on the part of the defendant to warrant a submission to the jury; (3) that there was not sufficient evidence to show that the child was free from contributory negligence; and (4) that a preponderance of the evidence shows that he was guilty of negligence contributing to the accident and resulting injury.

As a new trial must be had, we refrain from a detailed discussion of the evidence, but are of the opinion that there was sufficient evidence as to the defendant's negligence to warrant a submission of the case to the jury.

As to the contributory negligence of the injured child, the undisputed fact that the boy was ten years of age makes a prima facie case of freedom from contributory negligence, subject, however, to the right of rebutting such prima facie case, and it cannot be said, under such circumstances, that a child of tender years can be guilty of contributory negligence as a matter of law. In the case of a child under seven years of age, the prevailing presumption of freedom from contributory negligence is not rebuttable, and between the ages of seven and fourteen the presumption obtains until it is rebutted. It would be a rare case indeed, if any, where the record would be so conclusive as to permit a court to say as a matter of law that the presumption of freedom from contributory negligence was overcome by evidence rebutting such presumption or prima facie rule, and we are of the opinion that where such presumption exists, or prima facie case is made, a jury question is necessarily presented. Brekke v. Rothermal, 196 Iowa 1288, 196 N.W. 84; Gibbs v. Farmers' & Merchants' State Bank, 123 Iowa 736, 99 N.W. 703; Doggett v. Chicago, B. & Q. Ry. Co., 134 Iowa 690, 112 N.W. 171, 13 L.R.A.(N.S.) 364, 13 Ann.Cas. 588.

We think the appellant states the rule concisely and correctly in his brief wherein he says, " Proof that a child is under the age of fourteen years creates a prima facie case of freedom from contributory negligence, but, such presumption creating such prima facie case is rebuttable, and if there are facts in the record rebutting such inference or presumption then it is for the jury to determine whether or not under all...