O'Hara v. Chaplin

• Decision Date: 09 December 1930
• Docket Number: 40446
• Citation: 233 N.W. 516,211 Iowa 404
• Parties: WILLIAM F. O'HARA, Appellee, v. CLAY CHAPLIN et al., Appellants
• Court: Iowa Supreme Court

233 N.W. 516

211 Iowa 404

WILLIAM F. O'HARA, Appellee, v. CLAY CHAPLIN et al., Appellants

No. 40446

Supreme Court of Iowa, Des Moines

December 9, 1930

Appeal from Jones District Court.--F. O. ELLISON, Judge.

The plaintiff brought this action against the defendants to recover damages for personal injuries received in an automobile accident. While walking across the street in Cedar Rapids, the plaintiff was struck and injured by a car belonging to the defendant Clay Chaplin, and driven by his daughter, the defendant Dora Northrup. A jury, when the cause was submitted to it, returned a verdict for the plaintiff. Judgment was entered accordingly, and the defendants appeal.

Affirmed.

James E. Remley and Smith & Swift, for appellants.

George C. Gorman, for appellee.

KINDIG J. MORLING, C. J. and EVANS, STEVENS, FAVILLE, DE GRAFF, and WAGNER, JJ., concur.

OPINION

KINDIG, J.

On July 13, 1928, about 5:30 o'clock in the afternoon, the plaintiff-appellee was traveling from the north to the south side of First Avenue East in Cedar Rapids, and was struck by an automobile at a point approximately 30 feet west of where said avenue intersects Tenth Street in that city. The automobile belonged to, and was owned by, the defendant-appellant Clay Chaplin, and the defendant-appellant Dora Northrup was driving the vehicle with the owner's knowledge and consent. A description of the streets and surrounding circumstances will aid in understanding the questions hereinafter discussed.

First Avenue East, upon which appellee was injured, extends in an easterly and westerly direction, while Tenth Street runs north and south, and intersects the other thoroughfare approximately at right angles. Both streets are paved. There are double street-car tracks on First Avenue East, and Tenth Street has a single street-car line. At the southwest corner of the street intersection before described is a filling station. North from the filling station, and across First Avenue East at the northwest corner of the intersection there is a grocery store. Appellee's home was on the south side of First Avenue East, the second door west from the filling station.

Just before the accident, appellee went from his home, and passed the oil station along the west side of the intersection to the grocery store, where he apparently purchased a bottle of milk and some eggs. When returning to his home with those food products, appellee walked along the sidewalk west from the grocery store on the north side of First Avenue East to a point approximately 30 or 35 feet west from the Tenth Street intersection. Then the appellee started across First Avenue East in a southerly direction. He first passed between two automobiles parked on the north side of First Avenue East, and then continued walking across the avenue to a point about the center of the north street-car line, when the automobile struck him and knocked him to the pavement. After the accident; appellee's body was found near the center of First Avenue East. Through the impact aforesaid, the appellee received serious injuries, for which the jury allowed him substantial damages. Because of alleged errors occurring in the district court, a new trial is sought.

I. In the first place, appellants complain because the district court did not direct a verdict for them, on the theory that no actionable negligence on their part was shown.

It is disclosed by the record that there is conflicting evidence concerning what the driver of the car did. Riding with her at the time was another lady. According to the appellee's version of the facts, these ladies, at the time in question, were looking and waving at two men who were operating the oil station. Hence appellee contends that the accident occurred because the driver was looking toward the filling station, rather than keeping a proper outlook. Upon this subject, the appellee testified as follows:

"It looked to me [the appellee] the two girls [the appellant Dora Northrup and the lady riding with her] were looking toward the Shell filling station south [the oil station at the corner] with their hand out. I hurried as quickly as I could, to get out of the way. I was struck, and knew nothing after that. * * * Just as I [the appellee] went to go in the middle of the four tracks [the street railway tracks on First Avenue East], I looked up, and I saw this car in front of me. I saw the condition I was in, and I saw them [appellant Dora Northrup and her lady companion] looking the other way, south towards the oil station, and I made a quick move to get out of the way [of the automobile]."

Following the accident, the witness Walker went to the scene thereof, and heard a conversation between the appellant Dora Northrup, the driver of the car, and her lady companion. Concerning what was there said, Walker testified:

"The young lady [appellant Dora Northrup] and another young lady [the companion in the car] with her came across the street to where Mr. O'Hara [the appellee] was carried to [after the accident]. I did not know either of the ladies. One of the girls was a little bit hysterical. They were talking. One of them said to the other one, 'I never saw him [appellee] until we hit him, did you?' and she [the other] said, 'No.' She [the driver] said she just couldn't help it."

Likewise, the witness Booze said, upon the witness stand:

"I heard one lady [the appellant Dora Northrup] say: 'Why, I didn't see that man until I hit him,'--hit him or struck him, I don't know which she said now. She just made that remark."

With that testimony before them, and the other facts and circumstances concerning the condition on the avenue, it is manifest that the jury could, if they were so persuaded, find that the appellants were guilty of negligence. No question is raised concerning the admissibility of that evidence as against the appellant Clay Chaplin, who owned the car. Under the record, it was 24 feet and 6 inches from the north curb of First Avenue East to the north car track. After allowance is made for the width of the cars parked on the north side of First Avenue East, it appears, under the record, that there was an additional space of 19 or 191/2 feet on which automobiles could travel westward on First Avenue East, and still be to the right of the north street-car rail. An automobile driver going westward over this avenue at that time would have had a course at least 19 feet wide upon which to manipulate his machine, without going upon the territory between the street-car tracks where the appellee was injured. If it be assumed that the appellant Dora Northrup, while driving her automobile on this occasion, failed to keep a proper outlook, as contended by appellee, then the jury might well find that such conduct on her part constituted negligence which, under the circumstances, was the proximate cause of the injury.

As before suggested, there was a conflict in the evidence. Appellants contend that another automobile traveled northward on Tenth Street to First Avenue East, when it turned onto said avenue behind appellants' car, and continued westward. When this other vehicle, thus approaching appellant's car, sought to pass the same, and was opposite thereto, appellee was between the two vehicles. Whereupon, in order to avoid the second vehicle dangerously close to the south of him, appellants claim that appellee jumped backwards into the left fender of appellants' automobile. Continuing their argument, appellants maintain that no negligence appears on their part, because appellee had passed the line of travel to a safe place beyond, but jumped back unexpectedly and without notice, from the safe position into one of danger. Corroboration of appellant's contention may be found in the testimony of their witnesses.

On the other hand, appellee denies that he jumped backward, or that there was any other car passing appellants' automobile at the time. Furthermore, appellee claims that he jumped forward, to avoid being hit by appellants' car, but nevertheless the left fender thereof caught him. One witness for the appellee, who saw the accident, by way of corroboration said that he did not see a second vehicle on the street. Manifestly, the results of the conflicts and disputes in the testimony were matters for the proper consideration of the jury, and not the court.

"These issues, then, were necessarily and properly submitted to the fact-finding body." Olson v. Shafer, 207 Iowa 1001, 221 N.W. 949.

To the same effect, see Noyes v. Des Moines Club, 178 Iowa 815, 160 N.W. 215; Doyle v. Burns, 123 Iowa 488, 99 N.W. 195. During the discussion in Gradert v. Chicago & N.W. R. Co., 109 Iowa 547, on page 550, 80 N.W. 559, we approved the following declaration:

"So it is for the jury to determine as to the weight of the evidence, though there be one witness testifying on one side to certain facts, and many witnesses on the other side testifying to a contrary state of facts. It is not the province, in such a case, of the court to pass upon the credibility of the several witnesses, and to say which one told the truth, or that the story of one is more likely to be correct than that of another."

II. Complaint is, nevertheless, made because the district court did not sustain appellants' motion to withdraw from the jury the appellee's specifications of negligence numbered 1, 2, 5, 6, and 7. Those specifications, as stated in the record, are that the appellants were negligent in the following particulars:

"1. In failing to operate said car in a careful and prudent manner, and at a rate of speed that would not endanger the property of another or the life or limb of any person.

"2. In failing to have said automobile under control and reduce the speed to a reasonable and proper rate when...