Hubbard v. Bartholomew

Citation163 Iowa 58,144 N.W. 13
Decision Date22 November 1913
CourtUnited States State Supreme Court of Iowa


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: “What first attracted my attention as I came up Twenty-First street was, after I got up along by the grade, where I could see level, I saw a car approaching on the right-hand side and the car coming toward me. I should judge when I saw it it was pretty close to the curb. I could not have passed that car on our right between him and the curb. When I approached him, I saw there was no room for me to go between him and the curb on the right-hand side because he was so close to my side of the curbing, and further when I saw I could not get through there, and he made no effort to turn and give me room, I turned to my left. He did not stop his car or give any warning or any signal that I saw. I passed his car on the left. I did not notice exactly the driveway he came out. I did not see him come out of the driveway. He was coming down along the right-hand side slowly and it was pretty hard to tell, me moving and him moving at the same time, what distance he had been running before I met him; it might have been 100 feet or 200, maybe more; I could not tell. I did not come to any stop at all, I slowed down and I thought he had ample time to turn over to his side of the street before I met him. * * * As I turned to the left, I tried to apply my brakes. Q. What did the car do? A. It did it so quickly that I do not know what it did.” The witness estimated the speed of his car at from 20 to 22 miles per hour and proceeded: “Q. So it would be your best judgment you were very close the center? A. Pretty close to the center. Q. So you came long up then pretty close to the center and Bartholomew was about 5 feet from the east curb? A. Four or five feet. When I got pretty close to Bartholomew, I turned to the left some, not much. A person would always suppose a man would keep on his own side of the street. Q. But you knew he was not? A. I knew he was not at that time. Q. Now how much space did you have to pass through to the west of Bartholomew without running into the west curb? A. Oh, I had quite a little space. Q. You must have had 25 feet, didn't you, clear space? A. No, I don't suppose quite that much. Q. He was within 5 feet of the curb, his car would not be over 4 1/2 feet or 5 feet wide, would it? A. About 5 1/2 feet wide, I think. Q. Well, that is 10 feet and a half, and we find out that the street between the curb was 34 feet, that gives you 23 1/2 feet of space, doesn't it? A. Yes, sir. Q. It looks like a big enough hole for anybody to drive through, doesn't it? A. Well, under considerations, yes. Q. Now, Reeves, you say the pavement was dry? A. Yes, sir. Q. Some time before you struck the curbing you got busy with your brake, didn't you? Some time before you went off the track you got busy with your brakes, didn't you? A. Yes, sir. Q. What did you do? Tell the jury what you did to brake that car. Tell them how you did it. Some of them, at least, are not familiar with automobiles, tell them what you did. A. Well, there is three or four brake pedals right at your feet and watching which way he was driving and which way I was driving at the same time I reached down and put on the brake with my foot. Q. How hard did you set the brake? A. Probably set it pretty hard. Q. Well, did you? A. I did.” He did not know whether the wheels skidded. Q. You would not ordinarily call that a good job of steering, would you? A. Well, not a good job of steering. Q. Were you familiar with the car? A. Well, I had been driving one of that kind very often. Q. Had you ever run that particular car before? A. Well, I run that particular one around the shop. The car steered very easy; the fact is, I guess it steered a little too easy; it steered easier than the car I had been driving. It was more sensitive to the touch. Q. A little touch on that car meant more than any other car you had had hold of? A. More than any other car I had been driving then. Q. And, going at the rate of speed you were going, you missed calculation and gave it a little too much of a twist? A. Well, I guess that must have been about it.” 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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