Huffman v. King
| Decision Date | 19 June 1936 |
| Docket Number | 43469. |
| Citation | 268 N.W. 144,222 Iowa 150 |
| Parties | HUFFMAN v. KING et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Joseph E. Meyer, Judge.
Action in damages for injuries sustained by plaintiff, appellant, as a result of being struck by defendant's automobile on a street crossing. At the close of plaintiff's evidence the court sustained defendant's motion for a directed verdict. From a judgment entered thereon, plaintiff appeals.
Reversed.
E. A Lingenfelter, of Des Moines, and W. W. Bulman, of Chariton for appellant.
Casper Schenk, of Des Moines, for appellees.
The evidence in this case tends to show that about 9:30 p. m. on October 7, 1934, the plaintiff, in company with a Mr. and Mrs. Mayers, was returning to his home from a Mission service held at the corner of Second and Court streets in Des Moines. They lived not far from the Mission and were returning home on foot. On reaching the sidewalk on the southeast corner of Third and Walnut streets, in that city, plaintiff and his companions prepared to walk west across Third street along the south side of Walnut. Before leaving the sidewalk, plaintiff looked to the north and south, and seeing no cars approaching from the south, and seeing none within a distance of about 240 feet from the north, he and his two companions started across the intersection on the crosswalk used by pedestrians. Plaintiff says that he had looked far enough north to be sure he had plenty of time to cross over in safety. Our conclusion that he looked north about 240 feet before crossing is based upon evidence from which the jury could draw the inference that defendant's car, just before the accident, was traveling eight times as fast as plaintiff was walking. Third street between curbs is about 40 feet wide, and Walnut street between curbs is about 60 feet wide. On reaching the center of Third street, he again looked both north and south, and seeing no cars approaching within a distance of about 140 feet north of the crosswalk, he and his companions continued across the street. Plaintiff testified that when he looked north the second time he saw no cars coming within about 140 feet, and that he thought he had ample time to cross in safety.
After looking north the second time he and his companions continued to cross, and when he came to within ten feet of the opposite sidewalk, he was struck by a rapidly approaching automobile driven by the defendant King and owned by the defendant Wiggins System, Inc. There was also evidence tending to show that a street car traveling west along Walnut was also crossing Third street at just about the same time plaintiff was crossing that street; that as the street car was crossing the intersection, defendant's automobile dashed across Walnut street in front of the street car at such a rapid rate of speed that it just missed striking the street car. A passenger in the street car testified that the defendant drove his car at such a speed and in such a manner across Walnut street in front of the street car, that the defendant's car just missed striking the street car by a few feet.
The evidence also fairly tends to show that defendant's car was traveling about 25 miles an hour across the intersection in front of the street car, and that the driver failed to sound his horn or give any warning to pedestrians crossing the street. There is also evidence from which the jury could find that the driver failed to maintain a proper lookout, or reduce the speed of his car while approaching plaintiff and his companions as they were crossing Third street.
At the close of plaintiff's evidence, defendant filed a motion for a directed verdict, based chiefly upon the grounds, (1) that plaintiff failed to establish any negligence on the part of defendant which was the proximate cause of the injury and damage to plaintiff; and (2) that the evidence failed to show that plaintiff was free from any negligence on his part, but was guilty of contributory negligence. This motion was sustained by the court, and plaintiff appeals.
It is the settled rule of law in this state that if there is any evidence from which a jury could find that a driver was guilty of any negligence which proximately caused an injury, the question of such negligence must be submitted to the jury. Allender v. Chicago, R.I. & P. R. Co., 37 Iowa 264; Dreier v. McDermott, 157 Iowa 726, 141 N.W. 315, 50 L.R.A.(N.S.) 566; Balcom v. City of Independence, 178 Iowa 685, 160 N.W. 305, L.R.A. 1917C, 120; Nelson v. Hedin, 184 Iowa 657, 169 N.W. 37.
The first question for determination, therefore, will be whether or not there is any evidence tending to show that defendant driver was guilty of any act of negligence as alleged. Among the acts of negligence alleged in plaintiff's petition are (1) that the defendant exceeded the speed laws of the state; (2) that he failed to reduce the speed of his car, as he approached the street crossing over which the plaintiff was walking, to a reasonable and proper rate; (3) that he failed to keep a proper lookout for pedestrians along that crossing; and (4) that he failed to sound his horn or give any warning to pedestrians on the crossing.
Without setting out the evidence in detail, it is sufficient to say that the record in this case shows that there was evidence tending to show that defendant's automobile was driven across the intersection, at the time it struck plaintiff, at a speed of 25 miles per hour. The speed limit prescribed by statute in the business district of a city or town is 15 miles per hour.
Section 5030 of the Code of 1931 provides:
The evidence shows that the corner of Third and Walnut streets is only one block from the main post office in the city of Des Moines and is in the business district of that city. If defendant was driving at a speed of 25 miles per hour, it necessarily follows that he was exceeding the speed limit and was guilty of negligence in this respect. The question of the rate of speed at which he was traveling was necessarily one for the jury.
The evidence also tends to show that the defendant driver did not maintain a proper lookout or reduce the speed of his car in approaching the crossing over which the plaintiff and his companions were walking.
Section 5031 of the Code of 1931 requires a person operating a motor vehicle to have it under control and reduce its speed to a reasonable and proper rate " when approaching * * * a person walking in the traveled portion of the public highway," and " when approaching and * * * crossing * * * intersections of public highways." Holderman v. Witmer, 166 Iowa 406, 147 N.W. 926; Fisher v. Ellston, 174 Iowa 364, 156 N.W. 422; Walmer-Roberts v. Hennessey, 191 Iowa 86, 181 N.W. 798.
In Walmer-Roberts v. Hennessey, 191 Iowa 86, loc. cit. 101, 181 N.W. 798, 804, this court said:
There is evidence in this case tending to show that instead of reducing his speed and having his car under proper control, upon approaching the plaintiff and his companions upon the crossing, the defendant failed to reduce his speed until after he had crossed the street car tracks. It is fair to say from the evidence in this case that if defendant driver, while crossing Walnut street, had reduced the speed of his car to 15 miles an hour, and had it under proper control, he would have been able to have stopped his car before striking plaintiff, and the accident would not have occurred. The question of defendant's negligence upon this point, therefore, became one for the jury.
The evidence also tends to show that the defendant driver gave no warning of his approach to the intersection in question, and the question of his negligence in failing so to do was therefore also a question for the jury. Code § 5043; Walmer-Roberts v. Hennessey, 191 Iowa 86, 181 N.W. 798; Hough v. Illinois Central R. Co., 169 Iowa 224, 149 N.W. 885; Corning v. Maynard, 179 Iowa 1065, 162 N.W. 564.
Without reviewing the evidence in further detail, it is sufficient to say that there is evidence in the record from which the jury could find that one or more of the acts of negligence alleged have been sufficiently established to make the question of defendant's negligence one for the jury.
Defendants strenuously contend, however, that the motion for a directed verdict was properly sustained because the plaintiff failed to show that he was free from contributory negligence; and that the evidence introduced is not sufficient to make that question one for the jury.
It is the well-settled rule of law in this...
To continue reading
Request your trial