Hartman v. Red Ball Transp. Co.
| Decision Date | 11 November 1930 |
| Docket Number | 40371 |
| Citation | 233 N.W. 23,211 Iowa 64 |
| Parties | IKE F. HARTMAN, Administrator, Appellee, v. RED BALL TRANSPORTATION COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--FRANK S. SHANKLAND, Judge.
The plaintiff is the administrator of the estate of Thad S Babcock, deceased, who was killed in an automobile collision on June 3, 1929, at the intersection of East Fourteenth and Fremont Streets in the city of Des Moines. This action is to recover damages. Verdict and judgment in the court below in favor of the plaintiff, and the defendants appeal.
Affirmed.
H. B White and Havner, Flick, Huebner & Powers, for appellants.
Comfort & Comfort, for appellee.
STEVENS J. MORLING, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ., concur.
East Fourteenth Street, which is traversed by double tracks of the street railway, lies north and south, and is intersected and crossed by Fremont Street. The width of East Fourteenth Street between the curbs is 34 feet, and that of Fremont, 26 feet. The incline of Fourteenth Street as it approaches the intersection from the south, and of Fremont Street as it approaches from the west, is slightly downward.
On the morning of June 3, 1929, a bus belonging to the appellant Red Ball Transportation Company, which was driven by the appellant Albert Pepin, collided with an Oakland touring car driven by Thad S. Babcock, who was thrown therefrom and under it, with the result that he received injuries from which death resulted, a few minutes later.
The argument of appellants is devoted almost wholly to their contention that the deceased was guilty of contributory negligence, causing the injury, and that their motion for a directed verdict, made at the close of the testimony for plaintiff and renewed after both parties had rested, should have been sustained. Ordinarily, the question of contributory negligence is for the jury, and is not to be determined by the court as a matter of law.
The evidence as to many material matters is in hopeless confusion and conflict in this case. There is substantial agreement, however, as to the main physical facts.
The bus of appellant approached the intersection from the south on East Fourteenth Street, and the touring car from the west, on Fremont. It is not possible to say from the evidence the exact location of the touring car on the intersection when the collision occurred. The jury would have been warranted in concluding that it had passed the center of Fourteenth Street, and that the right wheels were south of the center of Fremont. The testimony is in substantial accord that the car was east of the center of Fourteenth Street. The car was struck by the bus from the right about the center, and driven to the northeast corner of the intersection with such force as to break off a pole about six inches in diameter, which was struck by the car.
The testimony on behalf of appellee tended to show that, as deceased was proceeding on Fremont, he was looking for a street number on the north side thereof, and that his face was turned in that direction until the bus was within 15 feet of the car. The witnesses for appellee estimated the speed of the car as it approached and entered the intersection at from 5 to 15 miles per hour. One of the occupants of the car testified that it was stopped, or practically so, before the intersection was entered, and that the driver and he both looked south, and that the bus was then 70 or 80 feet south of the intersection, proceeding northward at a speed of 30 to 35 miles per hour. All of the witnesses for appellee testifying on the point stated that the touring car first entered the intersection. The witnesses for appellants estimated the speed of the touring car at from 30 to 40 miles per hour, and of the bus at from 18 to 20. There is some variance in the testimony of the witnesses for appellants as to the relative location of the bus and touring car as they approached the intersection, but the jury could have found from their testimony that the bus was 20 feet south of the intersection, moving at from 18 to 20 miles per hour, when the touring car was equally distant on Fremont from the intersection, and that the bus preceded the car therein.
An occupant of the car called by appellee testified that he saw the bus after entering the intersection, and after having passed the center thereof to the east, when it was 15 feet away, and that the driver of the car immediately accelerated its speed. The witnesses for appellants agree that the driver of the bus, when 10 feet from the intersection, applied both the emergency and foot brakes. The driver of the bus testified that the brakes were in good condition.
Two witnesses called in behalf of appellee, however, testified that the driver of the bus stated, immediately after the accident, that, as the touring car approached the intersection, its speed was so reduced that he thought it was going to stop, and that he then proceeded to cross the intersection, and that his brakes did not work properly. The intersection and both streets were apparently free from obstructions for some distance either way therefrom, and there can be no doubt but that the collision could well have been avoided.
The testimony on behalf of appellants was that the driver of the bus sounded the horn and applied the brakes simultaneously. At least one witness testified that no horn was sounded, and other witnesses for appellee said they did not hear any warning.
We have omitted from the foregoing statement some minor details. On the record, substantially as stated above, we are asked to hold that the driver of the automobile was guilty of contributory negligence, causing the collision. Perhaps one other further detail should be stated: that is, that the testimony of some of the witnesses for appellants tended to show that the car...
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