Griffin v. Stuart, No. 43526.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: PARSONS
• Citation: 270 N.W. 442,222 Iowa 815
• Docket Number: No. 43526.
• Decision Date: 15 December 1936
• Parties: GRIFFIN v. STUART.

222 Iowa 815
270 N.W. 442

GRIFFIN
v.
STUART.

No. 43526.

Supreme Court of Iowa.

Dec. 15, 1936.

Appeal from District Court, Hamilton County; Sherwood A. Clock, Judge.

Action for injuries to plaintiff when struck by an automobile while she was crossing street. Verdict for defendant. Plaintiff appeals. Opinion states the facts.

Reversed and remanded.

KINTZINGER and STIGER, JJ., dissenting.

Maher & Mullen, of Fort Dodge, Burnstedt & Hemingway, of Webster City, and Thomas & Loth, of Fort Dodge, for appellant.

Helsell, Burnquist, Bradshaw & Dolliver, of Fort Dodge, and George B. Aden, of Webster City, for appellee.

PARSONS, Chief Justice.

The plaintiff, appellant herein, brought suit in the district court of Hamilton county, Iowa, alleging that she was struck by an automobile driven by the defendant, in Fort Dodge, Webster county, Iowa, on Twelfth street, while she was crossing the street. The case was tried to a jury and resulted in a verdict for the defendant, and plaintiff appealed.

To the abstract is attached a plat showing the surroundings of the accident, and also attached to the abstract and to the amendment to abstract, there are a number of photographs of surroundings near the place of the accident. Twelfth street in Fort Dodge is a north and south street. First Avenue South runs into Twelfth street from the east, then drops south about a hundred feet before continuing on west from Twelfth street. Second Avenue South also runs into Twelfth street from the east and drops down a hundred feet before continuing west from Twelfth street. Each of these streets is shown on the plat to be 70 feet in width, and the paving on Twelfth street is 40 feet from curb to curb. The accident in question took place between what would be the north line of Second Avenue South to the east, and some short distance north of the north line of Second Avenue South, on the east of Twelfth street, so it will be seen that one traveling on either of these avenues from east of Twelfth street, desiring to continue on the same numbered avenue, to the west, would have to go into Twelfth street and south for a short distance and then turn to the west to continue his travel on said avenue. In other words, there are no intersections of the two avenues with Twelfth street, but each of these avenues, both from the east and the west run into Twelfth street.

The petition alleges that about 7:15 p. m. on or about the 23d day of December, 1934, the plaintiff started to walk across Twelfth street in the city of Fort Dodge, just north of the point where Twelfth street is joined on the east by Second Avenue South; that the plaintiff left the west curb on Twelfth street and started to walk across the traveled portion thereof, walking in an easterly direction, and when she reached the center of the paved portion of the traveled part of Twelfth

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street plaintiff stopped and waited until it was safe for her to proceed across the east half of the paved portion of Twelfth street, after the passage of some motor vehicles from the south; that while plaintiff was standing in said position in the center of the street, the defendant Stuart approached the point where plaintiff was standing, driving a Ford V-8 automobile, which is owned by defendant, or was being driven by him with the consent of the owner thereof; that Stuart was driving said motor vehicle in a southerly direction on Twelfth street at a highly danger-out and reckless and unlawful rate of speed, and that the motor vehicle collided with the plaintiff in such manner and with such force as to inflict severe and permanent bodily injuries to her.

There were eleven specifications of negligence attributed to defendant by the plaintiff, which properly raised the question as to whether or not he was operating the automobile in a careful and prudent manner, and at a careful rate of speed; that he was imprudent and negligent, without regard for the safety of other persons using said highway, and without regard for the safety of plaintiff; that he did not have the car under control as required by law; that he failed to turn to the right and yield or give half of said traveled portion of the highway; that he was operating and driving his car at an improper and reckless rate of speed in violation of the laws of the state of Iowa; that he was operating the motor vehicle at an unlawful rate of speed in the business district, in excess of 15 miles per hour; that he failed to maintain a proper lookout for others while driving and traveling upon a public highway as required by law; that he failed to stop the motor vehicle when he discovered, or in the exercise of reasonable care should have discovered, the plaintiff in a place of peril and danger; that he failed to have the car under control, and failed to reduce the speed at which he was traveling, to a reasonable and proper rate of speed, when approaching the plaintiff standing in the traveled portion of a public highway; that Stuart failed to keep the motor vehicle he was driving under control, and failed to reduce the speed thereof to a reasonable and proper rate when approaching an intersection of a public highway as required by law; and that the defendant failed to operate the motor vehicle in such a manner as to travel on the right-hand side of the center of Twelfth street in the city of Fort Dodge, Iowa.

The evidence of the plaintiff and her witnesses show that the accident happened shortly after 7 o'clock p. m.; that plaintiff lived on the north side of Second Avenue South, a block and a half east of the Deep Rock station on Twelfth street, and on the same side of the street, that she had been at her cousin's home and left there about 7 o'clock in the evening, starting home on foot; that she came to Twelfth street from the west on First Avenue South; that when she reached Twelfth street she turned south at the Skelly Oil Station and walked south a short ways and then turned to go east; that she went to the curb and looked north to see if there were any cars, and there were none; that she walked to the center of the street and saw a car approaching from the south; that she kept walking until she got to the center of the street to wait; that she had looked north between the time she left the curb and when she stopped in the center of the street, and had not seen anything coming from the north. That Twelfth street is about 40 feet wide from curb to curb; that when she first saw the car coming from the south it was near the Deep Rock oil station on the east side of Twelfth street. The plat shows this station to be on the east side of Twelfth and on the south side of Second Avenue South, the lines of these two streets forming the north and west lines of the oil station. That there was another car coming from the south about a block or so farther south; that she did not see any car coming from the north at any time, and she was standing in the center of the street facing the east, with her head turned toward the south; that while she was standing there and had made no move in any direction, she heard no horn sounded as she walked diagonally across the street, which is just across the street from the Deep Rock oil station on the east; that she walked diagonally toward the sidewalk to the center of the street, and does not remember being struck; the last thing she remembers was seeing the car coming from the south, and she does not remember anything else until she woke up in the hospital. Plaintiff alleged she was injured in her left leg, from the foot to the hip; that the left shoe was completely torn off and beyond repair.

On cross-examination plaintiff stated she stepped off the curb and knew she

[270 N.W. 444]

could make it to the center of the street, and that when the car from the south had passed she would have plenty of time to go the rest of the way to the sidewalk; that when she reached the center of the street she looked to the...