Hampton v. Burrell

Citation17 N.W.2d 110,236 Iowa 79
Decision Date09 January 1945
Docket Number46611.
PartiesHAMPTON v. BURRELL
CourtUnited States State Supreme Court of Iowa

Rehearing Denied March 9, 1945.

R. B. Hawkins, of Leon, and Paul W. Steward, of Des Moines, for appellant.

O M. Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, and Hoffman & Carter, of Leon, for appellee.

GARFIELD Justice.

About 6 p.m on September 14, 1943, decedent came in contact with defendant's truck at the intersection of U. S. Highway 69 and West Street in Davis City (population about 500), Decatur County. No. 69, paved to a width of 18 feet, extends southwest and northeast at this point. About one-fourth block to the south the C. B. & Q. railroad tracks parallel No. 69. West Street which is graveled runs north and south across the highway and the railroad tracks. It is 50 feet wide but where it intersects the north side of the pavement it widens out in a rounding curve to the east and west.

Decedent, six years and one day old, lived with his parents and two brothers in the third house about a half block north of the intersection on the west side of West Street. Emmit Still, decedent's great uncle, lived at the northwest corner of the intersection. Roy, the decedent, slept with this uncle and there was a strong attachment between the two. Still was a railroad section hand, due home from work about 6 p.m.

Just before the accident Roy and his brother, 14 months younger, heard the motor cars carrying the section workers, left their home and ran south in West Street to meet their uncle. At or somewhat north of the north edge of the pavement, Roy came in contact with defendant's truck, traveling southwest on No. 69. He received an injury to his head from which he died two days later without regaining consciousness. Roy's mother as administratrix brought this action for the damage to his estate. Trial to the court resulted in judgment for $3250.

I. Upon this appeal defendant contends the evidence of negligence is insufficient, that decedent suddenly darted out from a place of concealment or a place remote from the line of travel and the accident was unavoidable. We think, however, there is sufficient evidence of defendant's negligence. Of course it is our duty to view the testimony in the light most favorable to plaintiff. We will briefly review the evidence in such light.

Defendant is a trucker, 26 years old, who was thoroughly familiar with this intersection. He knew Roy and his two brothers and frequently saw Roy playing around the Hampton home when he passed there. When defendant got within one-fourth mile of the intersection he could see it. The view of the intersection was not obstructed at any place within that quarter mile.

As defendant approached West Street from the east, the section men were returning from their work on a motor car and trailers traveling east on the railroad. Defendant looked toward the section gang, laughed and waved at them. Highway 69 does not cross the railroad, so the safe operation of his truck did not require defendant to look toward the railroad. There was no other traffic on No. 69 except a car that followed defendant at a distance of about 300 feet. Defendant admits he never saw Roy, his brother, or the large dog that was with the boys until he had driven about 200 feet beyond the intersection. He then stopped when one of the section men waved and screamed at him. That is the first he knew there had been an accident. Defendant was driving about 25 miles per hour. He did not slacken his speed nor change his course.

While there is evidence of weeds and bushes east of West Street, north of the intersection, there is substantial testimony that defendant had an unobstructed view not only of the intersection but of West Street for 150 feet north of No. 69. The driver of the car that followed defendant's truck, a witness for defendant, said on cross-examination, 'I saw this little boy coming toward the pavement and I was back 300 or more feet from this intersection at that time. I saw the dog with him * * * and realized there was liable to be a collision. * * * There was nothing that I saw there ahead of the truck driver that would prevent him seeing the child and stopping.'

Plaintiff testified there was an unobstructed view of the intersection and of West Street for 100 feet to the north from three blocks east on 69. Emmit Still testified, 'At a point 600 or 700 feet east of the place where this little boy was hit he could be seen 150 feet anyhow north of 69 * * *. There would be no place between 600 or 700 feet east of the crossing that he couldn't be seen for 150 feet north of that crossing and all the space in between.'

There is testimony that soon after the accident defendant said he was reckless because he was looking over at the section workers and never saw the little boy; that he wasn't paying attention at the time where he was driving. The inference from this is that the reason defendant did not see decedent is that his attention was needlessly diverted toward the railroad workers--not that his view was obstructed.

Plaintiff testified that when the boys left their home she said, 'Don't run out on the pavement.' Both plaintiff and Still who said they saw the fatal accident testified in effect that the boys did not run fast and were about in the middle of West Street when Roy was injured. There is substantial evidence that: Roy was two to three feet north of the paved portion of 69 when the truck came in contact with him; the outside dual wheel of the truck was on the shoulder north of the pavement; Roy's head was struck by a bolt which projected from the right front corner of the truck box; Roy was not looking back to the north at the time; just before the accident, decedent threw up his hands.

From the foregoing it is apparent the trial court was justified in finding defendant negligent in not keeping a sufficient lookout and not seeing the child. Of course defendant was bound to exercise reasonable care to maintain a lookout. The duty to look implies the duty to see what is plainly visible. Ege v. Born, 212 Iowa 1138, 1144, 236 N.W. 75. The court was warranted in concluding this little boy was plainly to be seen. That defendant needlessly diverted his attention to the railroad workers does not excuse his failure to observe decedent. Dearinger v. Keller, 219 Iowa 1, 3, 257 N.W. 206, and cases cited; 5 Am.Jur. 599, section 167.

Defendant was under the duty to exercise reasonable care not only in maintaining a lookout but also in operating his truck so that he might avoid striking decedent. Rebmann v. Heesch, 227 Iowa 566, 579, 288 N.W. 695; Pazen v. Des Moines Transp. Co., 223 Iowa 23, 30, 272 N.W. 126. The court was also justified in finding defendant negligent in not operating his truck so that the accident could have been avoided. Defendant testified he could have stopped his truck at the speed he was driving within about 15 feet. A finding would be proper that the accident would not have occurred if the truck had been turned slightly to the left. Under this record it was a question of fact for the court to decide whether defendant was negligent in not stopping or changing his course.

See, as supporting our conclusion on the sufficiency of the evidence, Paschka v. Carsten, 231 Iowa 1185, 3 N.W.2d 542; Luse v. Nickoley, 231 Iowa 259, 1 N.W.2d 205; McMahon v. Rauch, 230 Iowa 674, 298 N.W. 908; Lenth v. Schug, 226 Iowa 1, 281 N.W. 510, 287 N.W. 596; Darr v. Porte, 220 Iowa 751, 263 N.W. 240; Webster v. Luckow, 219 Iowa 1048, 258 N.W. 685.

Since decedent was but six years old it is presumed he was free from contributory negligence. We need not consider whether this presumption is conclusive. See Paschka v. Carsten, supra; Brekke v. Rothermal, 196 Iowa 1288, 1295, 196 N.W. 84; 38 Am.Jur. 890, section 205; Annotation, 107 A.L.R. 4, 114.

Cases upon which defendant relies do not conflict with our conclusion. They hold that a motorist is not liable for injury to a child who unexpectedly darts out from a concealed place (as for example behind a parked car between intersections) into the path of the vehicle, so that injury could not be avoided by the exercise of reasonable care. Among such cases are Mowrey v. Schulz, 230 Iowa 102, 296 N.W. 822; McBride v. Stewart, 227 Iowa 1273, 290 N.W. 700; Chipokas v. Peterson, 219 Iowa 1072, 260 N.W. 37, 113 A.L.R. 524, and Annotation at pages 528, 545.

II. Defendant contends there was error in denying him a jury trial. The court ruled there was no demand for a jury trial in accordance with Rule 177(b), Rules of Civil Procedure, therefore such a trial was waived under Rule 177(a), and the trial should be to the court under Rule 178. The applicable parts of these Rules are:

'177. Demand for jury Trial. (a) Jury trial is waived if not demanded according to this Rule; * * *.

'(b) A party desiring jury trial of an issue must file a written demand therefor, either by endorsement on his pleading, or within ten days after the last pleading directed to that issue. * * *

'178. To Court or Jury. All issues shall be tried to the Court except those for which a jury is demanded, * * *.'

No written demand for a jury trial was filed by indorsement on any pleading or otherwise and the Rules were not strictly complied with. Defendant contends however he did make a timely demand for a jury and that plaintiff's counsel waived his right to have the case tried to the court and is estopped to object to a jury trial.

The petition and answer were filed in November, 1943. On February 16 1944, plaintiff filed an amendment to her petition which amplified some of the specifications of negligence in the original petition and stated that certain expense totaling $141.50 had been incurred for a doctor, a hospital and an undertaker. ...

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