Giese v. Kimball

• Decision Date: 14 December 1918
• Docket Number: 31781
• Citation: 169 N.W. 639,184 Iowa 1283
• Parties: A. K. GIESE, Appellant, v. C. E. KIMBALL, Appellee
• Court: Iowa Supreme Court

169 N.W. 639

184 Iowa 1283

A. K. GIESE, Appellant, v. C. E. KIMBALL, Appellee

No. 31781

Supreme Court of Iowa, Des Moines

December 14, 1918

Appeal from Pottawattamie District Court.--O. D. WHEELER, Judge.

ACTION for damages resulting from an automobile collision on the streets. At the close of the evidence, there was a directed verdict for the defendant, and the plaintiff appeals.

Affirmed.

H. L Robertson, and Killpack & Northrop, for appellant.

Kimball & Peterson, for appellee.

EVANS J. PRESTON, C. J., WEAVER, GAYNOR, and SALINGER, JJ., concur. STEVENS, J., takes no part. LADD, J., dissents.

OPINION

EVANS J.

The accident in question occurred at an intersection of streets. According to plaintiff's evidence, the defendant was driving south at 20 or 25 miles an hour, along the west side of Glen Avenue, while the plaintiff was driving west, at 10 or 12 miles an hour, along the center line of Pierce Street. The point of collision was at the southeast corner of the intersection of these two streets. At the time of the collision, defendant's car was pointed slightly southeasterly while that of the plaintiff was pointed southwesterly. The right front spring of the defendant struck the right front wheel of the plaintiff. The accident having occurred at a point where the plaintiff was on the wrong side of the road, the first presumption of fault rested upon the plaintiff, and the burden was upon him to overcome it, and to show that his presence there, under the circumstances, was consistent with ordinary care. The circumstances relied on by the plaintiff to that end, and to the end also of showing the negligence of the defendant, are, in brief, that the defendant was turning eastwardly from Glen Avenue into Pierce Street, and that, instead of going around the center of the intersection to the south side of Pierce Street for that purpose, he "cut across" the northeast corner of the intersection, within one foot of the curb; and that, by reason of such position taken by the defendant, and the direction in which and speed at which he was going, a collision was rendered so imminent that the plaintiff drew his car to the left, in an attempt to avoid such collision. Each of these streets was 30 feet wide between the curb. Each of the cars was about 15 feet in length and 5 or 6 feet in width. The plaintiff himself testified, as a witness, as follows:

"I was coming west about the center of the street, --was driving about 10 or 12 miles an hour,--when I first saw the defendant, and was then about 20 or 25 feet from the intersection of Pierce Street and Glen Avenue. I first saw defendant on Glen Avenue, coming south toward the intersection. He was on the west side of Glen Avenue, coming up toward the south. He was about 20 or 25 feet from the intersection, and was going about 20 or 25 miles an hour He was then about 8 feet distant from the west curb of Glen Avenue. When I first saw him, he came right towards me; so I whipped over to the left, and gave him that corner of the street. He came within about a foot of the curb at that corner. I was coming up to Glen Avenue, and he came toward me with his car. I then whipped over to the left-hand side of the street, to give him room to get by. I went clear over against the curb on the other side. I saw he was going to run into me, and I whipped over, and he came right for me with his car. * * * Defendant ran right into me; the right side of the frame of his machine hit my machine square on the hub. My car was right up against the curbing, and could not go any farther; when his car hit my car, mine was right up against the curbing. * * * I was about 25 feet from the curb on Glen Avenue when I first saw defendant coming, and was right in the middle of the street. He was over on the west side of Glen Avenue. He came right toward me; I was in the center; he cut the corner, coming toward me; I was in the middle of the street; I didn't turn to the right, because I would have had a head-on collision; he was cutting the corner on me, and I was 25 feet from the intersection, in the middle of the street, and he was coming right toward me; he wasn't in the middle; I was in the middle; he was coming off the west side of Glen Avenue, and right toward me. * * * He turned toward the east; he cut the corner; I was over on the curb on the south side of the street, and farther east than the point from which he came. He turned his car on the west side of Glen Avenue. It was almost straight across Pierce Street when he hit; his hind wheel was about a foot from the northeast...