Handlon v. Henshaw
| Decision Date | 16 October 1928 |
| Docket Number | 38818 |
| Citation | 221 N.W. 489,206 Iowa 771 |
| Parties | MARTIN C. HANDLON, Appellee, v. ELMER HENSHAW, Appellant |
| Court | Iowa Supreme Court |
Appeal from Van Buren District Court.--W. M. WALKER, Judge.
Action for damages resulting from the collision of a motor vehicle with the plaintiff, a pedestrian, on a certain street in the town of Farmington, Iowa. The jury returned a verdict in favor of the plaintiff in the sum of $ 1,000. Motion for a new trial was overruled, and judgment was entered in conformity to the verdict. Defendant appeals.
Affirmed.
Sloan & Sloan and Newbold & Newbold, for appellant.
McBeth & Stong and J. C. Calhoun, for appellee.
DE GRAFF, J.
The instant action is predicated on the negligence of the driver of a motor vehicle, known as a Ford car, by reason of the pleaded facts (1) that the driver (appellant) was driving on the left or wrong side of the street; (2) that he "cut the corner" of the intersection of the streets in question; and (3) that no signal or warning was given to the plaintiff of the approach of said car. The geography of the case is as follows: Walnut Street in the town of Farmington is an east and west street. Front Street in said town intersects Walnut Street at right angles. The accident occurred on Front Street at a point about 20 or 25 feet south of the intersection, and east of the center line of Front Street. The defendant, as alleged in the petition, was driving on the left and wrong side of Walnut Street, and turned south, cutting the corner of the intersection, and while on the left-hand and wrong side of the Front Street struck the plaintiff, causing serious injury to him.
It must be conceded that, if the defendant had continued directly west, he would have passed north of the line of plaintiff's position some 15 or 20 feet, and had the defendant continued directly west upon leaving Walnut Street until he passed the center of the intersection on Front Street before turning south, no collision would have occurred. The defendant himself testified that the path on Walnut Street on which he drove is south of the center of the highway; that he was traveling on a line about 20 feet north of where the plaintiff was standing; that he continued down the well beaten path onto Front Street, and that, had he continued directly west, he would have gone north of plaintiff 15 or 20 feet; that he would have missed him if he had gone to the west side of Front Street and turned south, "if he hadn't moved in front of me;" that the plaintiff was never in the west half of Front Street, and that he did not strike him on the west side of the center of the street.
The facts disclose, and the jury could have found, that the place of the accident was about 15 feet from the water plug at the corner of Walnut and Front Streets; that the accident occurred about 7:15 A. M.; that there was no obstruction in the street; that the plaintiff, when struck, was about 10 feet out in Front Street; that, immediately before the accident, the plaintiff had started west and a little bit south in Front Street when the right-hand side of the defendant's car struck him; that he tried to throw himself out of range of the car, but was run over; and that the plaintiff observed the car on Walnut Street when it was 50 or 60 feet from him--"maybe more."
I. It cannot be held, as a matter of law in every case, that an auto driver is absolved from giving a signal on approaching a pedestrian on a highway on the theory that the pedestrian saw the vehicle immediately prior to the collision. Walmer-Roberts v. Hennessey, 191 Iowa 86, 181 N.W. 798. The appellant admits that he gave no signal, and that he saw the plaintiff standing near the hydrant and a little south of the street intersection.
It is quite apparent that the plaintiff was compelled, under the circumstances, to act suddenly. He realized, just before he was struck, that he was in imminent danger, and undoubtedly was somewhat confused. Under such conditions, the law does not require a person to exercise that degree of care that a person must exercise when there is time for deliberation. See Walterick v. Hamilton, 179 Iowa 607, 161 N.W. 684; Donker v. Powers, 230 Mich. 237 (202 N.W. 989); Kuchler v. Stafford, 185 Ill.App. 199, quoted with approval in Brody v. Dickie, 100 Conn. 189 (122 A. 908); Thomas v. Pennsylvania R. Co., 275 Pa. 579 (119 A. 717).
In any event, under the facts of the instant case, a jury question was presented both as to the alleged negligence of the defendant and the contributory negligence of the plaintiff. We discover no reason to disturb the findings of the triers of the facts in these particulars. The appellant's motion for a new trial on the ground of the insufficiency of the evidence was correctly ruled.
II. At this point it may be said that many of the appellant's assignments of error are too indefinite and non-specific under our rule. For example: That the court erred (1) in admitting evidence offered by plaintiff on trial, over the objection of defendant; (2) in refusing testimony offered by defendant on...
To continue reading
Request your trial