Hewitt v. Ogle

• Decision Date: 23 October 1934
• Docket Number: No. 42580.,42580.
• Citation: 256 N.W. 755,219 Iowa 46
• Parties: HEWITT v. OGLE et al.
• Court: Iowa Supreme Court

219 Iowa 46

256 N.W. 755

HEWITT

v.OGLE et al.

No. 42580.

Supreme Court of Iowa.

Oct. 23, 1934.

Appeal from District Court, Warren County; E. W. Dingwell, Judge.

Action at law for damages against the owner of an automobile and the person who it is claimed was driving same with the consent of the owner. On motion of the defendants, the court directed a verdict in their favor and judgment was entered thereon. Plaintiff appeals.

Affirmed.

Watson & Watson, of Indianola, and M. R. Stansell, O. M. Slaymaker, and R. E. Killmar, all of Osceola, for appellant.

Gibson & Stewart, of Des Moines, and S. E. Prall, of Indianola, for appellees.

DONEGAN, Justice.

This case grows out of an automobile accident which occurred at a street intersection in the city of Indianola, Iowa. At the time of the accident, the plaintiff-administrator, accompanied by his wife, the decedent, was driving eastward in Third street in said city, and the defendant Coltrane was driving an automobile owned by the defendant Ogle northerly in G. street in said city. As a result of the collision, the plaintiff's wife received injuries from which she died about a week following the accident. The action, as originally brought, was against the defendants, Coltrane, the driver of the car, Ogle, owner of the car, and a Reverend H. G. Gibson, by whom the car had been rented from Ogle. Upon a former trial of the case the court directed a verdict in favor of the defendant Gibson, and submitted the case to the jury as to the other defendants. The jury disagreed, and the case was tried the second time. Upon the second trial the defendants Ogle and Coltrane filed separate motions for a directed verdict at the close of plaintiff's evidence and renewed said motions with some additions thereto at the close of all the evidence. The trial court sustained the motions, directed a verdict in favor of the defendants, and entered judgment thereon. Plaintiff appealed.

The motions of the defendants for a directed verdict were each based on several grounds and were sustained generally by the court. The motions, though separate, were practically identical as to many of the grounds thereof, and the first two grounds of each of said motions were, in substance: (1) That the plaintiff had failed to prove negligence on the part of the defendant; and (2) that the plaintiff had failed to prove freedom of his decedent from contributory negligence. If the court was correct in sustaining the motions on either one of these two grounds, the plaintiff-appellant cannot, of course, recover in this action, regardless of what the ruling should have been on the other grounds of the motions if each ground had been ruled on separately. While not deciding or even suggesting that the first ground of the motions should have been sustained, we deem it sufficient to consider only the second ground of the motions in regard to contributory negligence on the part of the plaintiff's decedent.

The evidence shows without dispute that the accident happened about 10 o'clock on a Sunday forenoon in the month of July, 1931; that the day was warm and clear; that neither of the intersecting streets was paved; that the graded portion thereof was dry and dusty and from 25 to 35 feet wide and the corners somewhat rounded; that plaintiff and decedent were married in 1905 and had lived in the vicinity of Indianola during all the time from their marriage until the time of the accident; that there was considerable travel on both streets at this intersection; that G street south from the intersection runs through what is classed as a suburban district and there is no speed limit on this part of said street; and that neither the plaintiff nor his decedent saw the car of the defendants at the time before the collision occurred. There is no evidence on the part of the occupants of the defendant car or any other eyewitness to the accident. According to plaintiff's testimony, he was driving at a speed of approximately 10 miles per hour as the front wheels of his automobile passed over the sidewalk on the west side of G street and along the west side of the intersection. He testified that his own and the decedent's faculties of sight and hearing were good and that at this point both he and the decedent looked southward on G street. The evidence shows that there was no obstruction to the view to the southward and, according to his own testimony, he had a clear view of G street to the south of the intersection for a distance of from 225 to 250 feet before the surface of the street made a dip, and that he did not know whether or not a car could be seen beyond the point where this dip to the southward began. He further testified that neither he nor his decedent saw the car of the defendants when they looked to the southward; that they both then looked to the northward on G street, and, seeing no cars in that direction, proceeded across the intersection at a speed of about 10 miles per hour toward the east side of G street, without either of them again looking to the south; and that, when his car reached a point where the front part was going out of the intersection and where the back part of his car was about 25 feet east of the sidewalk along the west side of the intersection,...