Groves v. Webster City

• Decision Date: 24 November 1936
• Docket Number: 43547.
• Citation: 270 N.W. 329,222 Iowa 849
• Parties: GROVES v. WEBSTER CITY.
• Court: Iowa Supreme Court

270 N.W. 329

222 Iowa 849

GROVES v. WEBSTER CITY.

No. 43547.

Supreme Court of Iowa.

November 24, 1936

Appeal from District Court, Hamilton County; T. G. Garfield, Judge.

An action in damages for injuries resulting in the death of plaintiff's intestate as a result of being struck by defendant's truck on a street intersection in Webster City, Iowa. The jury returned a verdict in favor of plaintiff. Defendant appeals.

Affirmed.

E. P Prince, City Atty., of Webster City, and Miller, Miller & Miller, of Des Moines, for appellant.

Sterling Alexander, of Webster City, for appellee.

KINTZINGER, Justice.

The plat embodied herein will assist in understanding some of the facts involved in this case. Second street, also used as highway No. 20, in Webster City, Iowa, runs east and west and is 52 feet wide Des Moines street runs north and south across Second street and is 42 feet wide. Plaintiff's intestate, while walking across the south half of the intersection of Des Moines and Second streets, was struck by one of defendant's trucks, and received severe injuries, resulting in his death. The south half of Second street is 26 feet wide. It was along this portion of Second street that the accident in question occurred at about 6:40 a. m. on November 3, 1934, at which time it was raining quite hard. At that time decedent wore a long overcoat and carried an umbrella pulled well down over his head and shoulders.

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The block west of the intersection where the accident occurred had been barricaded from traffic, and a large " road closed and detour" sign was placed against the traffic light in the center of the intersection, and traffic had been detoured around the block for two or three weeks. The morning in question was dark, but the street lights were lit and several red lights were placed upon the barricade extending half way across Second street, about 100 feet west of the intersection in question. Notwithstanding the barricaded street, the defendant's truck passed over the street around the barricade, turned into the south half of the street almost to the sidewalk line, and proceeded easterly thereon.

It may be conceded, for a discussion of this case, that decedent was guilty of contributory negligence in passing over the street in front of the on-coming truck. The petition, however, alleges that defendant's driver knew of decedent's perilous position, and after knowing of the same, could have avoided the accident by the exercise of ordinary care thereafter, under the doctrine of last clear chance.

At the close of the evidence, defendant's motion for a directed verdict was overruled. The case was submitted to the jury and a verdict returned for plaintiff. A motion for a new trial was overruled, and judgment entered, from which defendant appeals.

Plaintiff's intestate was first observed by the truck driver " in the center of the south half of the intersection directly south of a stop and go sign," in the center of the intersection, and about 100 feet east of defendant's truck as it passed the barricade. Decedent was following a slightly northwesterly direction, and was walking towards defendant's truck. He continued in this direction about ten steps, during which time the truck traveled to within 50 feet of the intersection. Here the decedent stopped and sort of tramped around in the intersection, and then took about six or seven steps toward the southwest corner of the intersection, and about 15 feet therefrom. All of this time it was raining and decedent had an umbrella over his head pulled down over his shoulders. Defendant's driver testified that decedent never took the umbrella off of his head and shoulders, or looked out. Defendant's driver took him for an old lady, as he had on a long coat and was walking stooped over. At that time the truck was almost to the westerly sidewalk line of Des Moines street. While still in the intersection, decedent again turned around and walked in a northerly direction towards the on-coming truck. The truck driver said that he did not see the decedent retracing his steps until he came to within two feet from the south side of the front end of his truck. During all of this time decedent was in the traveled portion of the south half of the intersection, and walking directly toward the path of the on-coming truck, and while so doing he was in a perilous position.

I.

Appellant contends that the truck driver did not become aware of this perilous position until he saw decedent about two feet from the front of his truck, when it was impossible to stop in time to avoid the injury. Appellant, therefore, contends that the court erred in failing to direct a verdict in its favor because of decedent's contributory negligence and because the doctrine of last clear chance does not apply in this case.

It may be conceded that if defendant's driver did not become aware of decedent's perilous position until he came within two feet of the front end of the truck, he would not have had sufficient time within which to swerve or stop his truck in order to avoid the accident. Defendant's driver said he took his eyes off of the decedent after he had taken six or seven steps toward the southwest corner of the intersection, and that he did not see him again until he came within two feet of the front end of the truck.

If, however, the physicial facts and circumstances show that the truck driver did see the decedent in a perilous position in the intersection, as he approached the front end of the truck, in time to have avoided the accident, then the question of defendant's negligence under the doctrine of last clear chance was for the jury.

The facts show that the decedent was at all times in the traveled portion of the south half of the intersection on Second street, and on that portion of the street along which defendant's truck was traveling. Defendant's truck was traveling east along the center of the south half of Second street on which decedent was walking and generally toward the position occupied by decedent. At the time the truck reached the intersection, the decedent was not over 25 feet away, and in a direct line with a car on Des Moines street approaching the southeast corner of the intersection from the south, which the driver saw as he looked south for traffic on Des Moines street .

Defendant's driver testified that as he approached and while in the intersection, he looked both north and south several times for oncoming traffic. It was early in the morning, and the only vehicular traffic on the street was one automobile which defendant's driver saw about a hundred feet south of the intersection on Des Moines street, just south of and near the southeast corner of the intersection. There was evidence from which the jury could find that at the very time defendant's driver saw this car, the decedent was in the intersection directly in the driver's line of vision between the front end of the truck and the car on Des Moines street . It is, therefore, clear that the jury could have found from the physical facts and circumstances that the defendant's driver must have seen the decedent in a perilous position on the roadway in front of his truck. The south half of the intersection is only 26 feet wide. As the truck was proceeding easterly in the center of the south half of the intersection, there was not more than 10 feet between the south side of the truck and the sidewalk. Decedent was within that space ahead of the truck and easily within the vision of the headlights thereon. The evidence tends to show that at the time of the accident, the truck was traveling at such a low rate of speed that it could have been stopped within a few feet. There is no claim that the decedent suddenly retraced his steps or suddenly ran or jumped into the path of the truck. There was no obstruction between the truck and the car approaching the southeast corner of Des Moines street at the time decedent was walking toward the truck in the intersection; and no reason is given, and no claim made that the driver's attention was diverted or his vision obstructed at that time. The headlights on the truck were lit, there was a lighted street lamp on the corner, and the truck was not over 25 feet away, and on the same side of the street on which decedent was walking.

It is our conclusion that there was sufficient circumstantial evidence in this case from which the jury could find that decedent was in plain view of defendant's driver from the time he was first observed on the south half of the intersection in question until he was struck, and that he was within the driver's vision when he looked ahead and toward the south several times.

The evidence tends to show that the driver knew from decedent's actions that he was confused when he stopped and tramped around on the intersection and when he turned toward the southwest corner. At that time it was raining hard and it appeared to the driver that the decedent was a stooped over old woman, although he was, in fact, a man over 80 years old. After taking the six or seven steps, the driver said he took his eyes off of decedent. At that time the decedent was still in the traveled portion of the south half of the road along which defendant's truck was proceeding, and there was evidence tending to show that he was directly in the line of the driver's vision between the front end of the truck and the car approaching the intersection from the south. The evidence also tends to show that the truck was traveling at such a low speed that a jury might well find that its course could have been changed or the truck stopped in time to avoid the accident.

Although it be conceded that decedent was guilty of contributory negligence in not observing the truck approaching the...