Hubbard v. Bartholomew
Citation | 163 Iowa 58,144 N.W. 13 |
Parties | HUBBARD v. BARTHOLOMEW. |
Decision Date | 22 November 1913 |
Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Hugh Brennan, Judge.
Action for damages was tried to jury which, upon the introduction of evidence in chief for plaintiff by direction of court, returned a verdict for defendant. Thereupon plaintiff moved for new trial. The motion was sustained, and defendant appeals. Reversed.Carr, Carr & Evans, of Des Moines, for appellant.
Dorn & Hoffman and E. A. Lingenfelter, all of Des Moines, for appellee.
Cottage Grove avenue in Des Moines extends east and west, as does University street, and both are intersected by Twenty-First street running north and south. On either side of the latter are dwelling houses averaging less than 100 feet apart between the two intersecting streets, which are a third of a mile apart, so that the speed of an automobile on November 3, 1910, might not lawfully exceed 10 miles an hour. Sections 1571a, 1571h, Code Supp. On that day Reeve, an automobile chauffeur, invited plaintiff, a policeman, to take a ride with him in a Buick runabout, and at about 1 o'clock in the afternoon they started with Reeve at the wheel and plaintiff at his left and, after driving about a mile, turned in Cottage Grove avenue, going west to Twenty-First street and then turned north on Twenty-First street. There is a slight rise in the street from the corner for about 300 feet and from there on slightly down grade to University street. The speed of the automobile is estimated by plaintiff at 15 miles an hour, but Reeve thought it moving from 20 to 25 miles an hour. Plaintiff testified it was from 3 to 5 or 6 feet from the east curb. The defendant lived on the west side of the street, and plaintiff noticed him drive his automobile down the driveway north of his house to the east side of the street and turn south and move slowly near the east curbing. The automobiles were then about 175 or 200 feet apart. Reeve's car turned westerly in time to avoid colliding with that of defendant but ran over the west curbing against an iron post in the parking, pushed it over, and struck a tree, injuring plaintiff. The width of the street between the curbs was 34 feet and 4 inches. According to the plaintiff's testimony, as defendant's car turned south, it was 75 to 100 feet north of the iron post, and Reeve's car 100 feet, possibly a little more, to the south of it, and Reeve's car did not turn to the west side until necessary to avoid a collision and then at an angle of 45 to 90 degrees. Mason estimated that defendant's car was 6 to 8 feet from the east curbing and testified that he could see the track of Reeve's car from where it veered to the west and that it began to turn 75 to 90 feet south of defendant's car, which was then opposite the post; it then being from 6 to 10 feet west of the east curbing and from where it turned went straight to the post.
Reeve testified: The witness estimated the speed of his car at from 20 to 22 miles per hour and proceeded: He did not know whether the wheels skidded. “ The witness farther testified that the car belonged to Brothers; that he was sent by the Strong Motor Company to bring it to its repair shop and fix it; that Brothers told him the carbureter needed adjustment and the pump fixing; that he told plaintiff he was going to try the car out and invited him to go along; and that he had driven the car around town some and did not mention the defects to plaintiff. Such is the evidence recited somewhat in detail. Its sufficiency is the sole question raised.
[1] I. Appellee insists that the order granting a new trial ought not to be set aside because within the discretionary powers of the trial court. A verdict was directed for defendant because of the insufficiency of the evidence to support a verdict. The granting of a new trial, then, merely held that the court was mistaken in the former ruling and that the evidence was sufficient for that purpose. The question passed on then did not involve the exercise of discretion but a question of law; that is, whether, accepting all the evidence as true, it and the inferences favorable to plaintiff to be drawn therefrom would...
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