Hogan v. Nesbit

• Decision Date: 17 January 1933
• Docket Number: No. 41117.,41117.
• Parties: HOGAN v. NESBIT.
• Court: Iowa Supreme Court

216 Iowa 75

246 N.W. 270

HOGAN

v.NESBIT.

No. 41117.

Supreme Court of Iowa.

Jan. 17, 1933.

Appeal from District Court, Black Hawk County; R. W. Hasner, Judge.

This action was brought by the plaintiff, Susan Hogan, as administratrix of the John Hogan estate, to recover a judgment against the defendant Ray E. Nesbit for the wrongful death of the intestate. There was a trial to a jury, and at the end of all the evidence the district court sustained the defendant's motion for a directed verdict. Judgment was entered accordingly, and the plaintiff appeals.

Affirmed.

McCoy & Beecher, of Waterloo, for appellant.

Longley, Ransier & Frank, of Waterloo, for appellee.

KINDIG, C. J.

The controversy here grows out of an automobile accident which occurred at the intersection of Arterial Highway No. 20 in Black Hawk county, with the county highway therein, known as the Dewar-Gilbertville road. Generally speaking, the arterial highway extends in an easterly and westerly direction, while the Dewar-Gilbertville road runs north and south. These roads thus intersect about six miles east of Waterloo.

Arterial Highway No. 20 is paved at the place in question. This pavement is eighteen feet wide. There is gravel on the Dewar-Gilbertville road.

At about 6 o'clock in the evening of July 20, 1930, the defendant-appellee, Ray E. Nesbit, while approaching the aforesaid intersection, was driving a Jewett-Paige sedan automobile westward on Arterial Highway No. 20. Riding with the appellee in the Jewett-Paige automobile at the time were his wife and two children. As the appellee thus approached the intersection from the east over Arterial Highway No. 20, John Hogan, a farmer, 66 years of age, advanced toward it in a Model T. Ford touring automobile from the north over the Dewar-Gilbertville road. When thus approaching the intersection, John Hogan was alone in the automobile driven by him. Both automobiles entered the intersection at the same time. A collision occurred and John Hogan was killed.

Thereafter Susan Hogan was appointed administratrix of the John Hogan estate. She, as such administratrix, on September 5, 1930, commenced this action in the district court to recover damages from the appellee for the alleged wrongful death of John Hogan. Susan Hogan, because the district court directed a verdict against her, as such administratrix, is the appellant on this appeal.

It is claimed by the appellant that her intestate was killed because of the appellee's negligence. Such negligence, the appellant contends, is as follows: First, that the appellee failed to operate his automobile, when approaching the intersection, in a careful and prudent manner; second, that the appellee operated his automobile at the time and place at an excessive rate of speed; third, that the appellee on the occasion in question did not properly control his automobile; fourth, that the appellee, as he approached the intersection, did not keep a proper outlook for cars on the county highway; fifth, that the appellee wrongfully turned his car to the left-hand side of the arterial highway at the intersection; sixth, that the appellee failed to sound a horn or other signal device on his automobile when approaching the intersection; and, seventh, that the appellee failed to stop his automobile after discovering the peril of the appellant's intestate at the intersection.

By way of answer to the foregoing contentions of the appellant, the appellee claims that John Hogan himself at the time in question was guilty of negligence which contributed to his injury. This negligence, the appellee asserts, arose because John Hogan, as he approached the intersection from the north, did not stop at a stop sign placed on the north side of the east and west paved highway, nor did he stop at any place between that stop sign and the pavement on the arterial highway. Accordingly, the appellee declares the district court properly directed a verdict in his favor because of the foregoing contributory negligence of John Hogan. On the other hand, however, the appellant appeals because the district court entered judgment against her on the directed verdict aforesaid.

[1][2] I. The stop sign above named was placed at the north side of the paved arterial highway by the proper state authorities as required by law. In construction, the sign complied with legal requirements. Consequently it was the duty of appellant's intestate to stop the vehicle which he was propelling before he drove across the arterial highway. Because the appellee approached the intersection at the time in question in his automobile on the arterial highway, he had the right of way over the appellant's intestate, who, on that occasion, was advancing toward the intersection on the north and south county road. Under the circumstances, then, the appellant's intestate, if he failed to stop before entering the primary highway, violated sections 5079-b1, 5079-b2, 5079-b3, and 5079-b4 of the 1927 Code, then in operation. A violation of those statutes by the appellant's intestate under the circumstances would constitute negligence. Kisling v. Thierman (Iowa) 243 N. W. 552;Albert v. Maher Bros. Transfer Co. (Iowa) 243 N. W. 561;Wosoba v. Kenyon et al. (Iowa) 243 N. W. 569;Waldman v. Sanders Motor Co. (Iowa) 243 N. W. 555;Holub v. Fitzgerald (Iowa) 243 N. W. 575;Willemsen v. Reedy (Iowa) 244 N. W. 691.

[3] Can it be said, then, as a matter of law, that the appellant's intestate in the case at bar did not stop his automobile before crossing the arterial highway? Manifestly under the record it can be so said. None of the witnesses testifying for the appellant stated whether her intestate did or did not stop his automobile before driving across the arterial highway. Some of these witnesses saw the appellant's intestate as he approached the intersection. Those of the appellant's witnesses who did thus see her intestate approach the intersection testified that he retarded his speed to five or ten miles an hour. In no event, however, did any witness say that the appellant's intestate stopped his car before entering the intersection, as required by law.

On the other hand, F. W. Reisner, testifying for the appellee, stated that the appellant's intestate did not stop his automobile before crossing the intersection. This witness was a graduate of the East High School, of Waterloo, Iowa. He was 25 years of age and, at the time in question, operated a bus for the Illinois Central Railway Company between Waterloo and Dubuque. The bus, just before the collision, was traveling on the arterial highway eastward from Waterloo near the intersection of the highways in question. When thus traveling toward the intersection where the accident occurred, Reisner saw John Hogan's car approaching from the north and likewise saw the appellee's car advancing from the east. According to Reisner, the two cars were traveling at about the same rate of speed. Furthermore, this witness said that the appellee swerved his car to the left at the intersection in an apparent attempt to avoid hitting the car driven by the appellant's intestate. There is no contradiction of Reisner's testimony on the issue that the appellant's intestate did not stop his car before entering the intersection. It is argued by the appellant that Reisner must not have seen her intestate's car. This assertion is based upon the proposition that Reisner saw a car approaching the intersection at the rate of 25 or 30 miles an hour, rather than a car traveling at the speed of 5 or 10 miles per hour. Witnesses testifying for the appellant, as before indicated, said that her intestate approached the intersection at a speed of from 5 to 10 miles an hour. So, it is concluded by the appellant that Reisner, who said the car that he saw was going 25 or 30 miles an hour, could not have seen John Hogan's vehicle.

Obviously there is no basis in the record for this argument. Reisner said he saw the car driven by the appellant's intestate. There is no basis in the record to deny that Reisner saw the car in which the appellant's intestate was killed. Both the appellant's witnessesand Reisner were referring to the same automobile. No other automobile was upon the north and south highway at the time. Clearly Reisner and the appellant's witnesses referred to the same vehicle, but merely disagreed concerning its speed. Consequently it is clear that the appellant's intestate at the time in question drove his automobile across the arterial highway without first stopping on the north side thereof. This failure on the part of the appellant's intestate constituted negligence. Such negligence will bar a recovery if it contributed to the accident and resulting death of the appellant's intestate.

II. It is argued by the appellant that her intestate's negligence, above explained, was not the proximate cause of the accident. Although her intestate may have been negligent in failing to stop, the appellant declares that such failure on his part to exercise due care will not prevent a recovery in the case at bar unless such omission was the proximate cause of the accident.

The basis for this contention is the thought that the appellee's car struck the automobile driven by the appellant's intestate at the south edge of the pavement on the arterial highway. Therefore, it is concluded by the appellant that had the appellee driven straight west on the north, or right-hand side of the pavement, he would have missed her intestate's car. See Descombaz v. Klock (S. D.) 235 N. W. 502. Evidently the cars came together at the south side of the pavement, because the appellee swerved his automobile to the south. Had he gone straight forward or turned to the right, it is probable that the cars would have collided at some other position on the pavement.

[4] However that may be, the appellant does not advocate the correct theory of law. Contributory negligence, in order to bar a recovery by the one guilty thereof, need not be the...