Hutchinson v. Sioux City Serv. Co.
| Decision Date | 14 April 1930 |
| Docket Number | No. 40213.,40213. |
| Citation | 210 Iowa 9,230 N.W. 387 |
| Parties | HUTCHINSON v. SIOUX CITY SERVICE CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; R. H. Munger, Judge.
Action for a minor, eighteen years of age, by her next friend, based upon the alleged concurrent negligence of the defendant Sioux City Service Company, and the alleged reckless operation by the driver of a motortruck owned by the defendant Babcock, for personal injury, the result of a collision of the truck with a street car. Verdict and judgment thereon for the plaintiff. Both defendants appeal.
Reversed.Stewart & Hatfield, of Sioux City, for appellant Service Company.
Hays, Baron & Mathews and Baron & Bolton, all of Sioux City, for appellant Babcock.
Strong & Seff, of Sioux City, for appellee.
The injury suffered by the plaintiff is the result of a collision between a street car upon the track of the defendant Sioux City Service Company, and a motortruck owned by the defendant Babcock and operated at the time in question by the driver, Palmer. It is the claim of the plaintiff that, at the time in question, the defendant service company was negligent and that the driver of the truck in which plaintiff was riding as a guest or passenger, not for hire, was guilty of reckless operation thereof, and that the negligence of the former, and the reckless operation of the latter, concurred in producing the collision which resulted in her injury. At the close of plaintiff's evidence, and at the close of all the evidence, each defendant moved for a directed verdict on various grounds, including the ground that the evidence showed that the plaintiff was guilty of contributory negligence, as a matter of law, and that it was not sufficient to establish her freedom from contributory negligence. Said motions were overruled. The proposition was again raised in the motions for a new trial, which were overruled.
While there are various interesting propositions presented, it appears to us that, under the record, the determination of the aforesaid question is decisive. We therefore turn to the record to ascertain the facts.
One Palmer was engaged by Babcock in operating a motortruck in the carrying of articlesof freight between Vermilion, S. D., and Sioux City, Iowa, and intervening points. Palmer left Vermilion at 4 o'clock in the morning, making the trip to Sioux City, and leaving Sioux City for his return trip about noon. Three young ladies, including the plaintiff, wanted to come from Vermilion to Sioux City on August 1, 1928, and return the same day. On the evening before, one of them, by telephonic communication, secured permission from Palmer to make the trip with him the following morning. As per arrangement, the three girls met Palmer at 4 o'clock on the morning of August 1, when the trip was begun. The seat across the cab portion of the truck extends clear across the truck, a distance of 6 feet and 7 inches. This afforded convenient seating space for the driver and the three girls. The front portion of the cab was glass and any one in the cab had a clear vision forward. There was also a window to the left of the seat, which was down at the time in question. There was attached in a conspicuous place in the cab, the following: After daybreak, when on the route, this notice was read and discussed by the three girls. They arrived at Sioux City about 6:30 a. m., and made arrangements with Palmer as to when they should meet him for the return trip, which was about noon. Upon leaving the depot, the other two girls were seated to the right, and the plaintiff to the left of the driver.
The accident occurred at the intersection of the street railway with what is known in the record as the “Military Road.” From the place where they entered this road, to the place of the accident, the roadway runs in a northwesterly direction, but for convenience (as is also done by counsel) we will call it an east and west road. The Military Road is traveled in going from North Riverside, a suburb of Sioux City, across the Big Sioux river into South Dakota. Along the south side of the Military Road is the track of the street railway. The terminus of this track is a short distance this side of the bridge across the Big Sioux river. At the terminus, the track crosses the road at an angle of 45 degrees, and makes a loop to the north and west, which affords the means for the street cars to turn around for the return trip to the city. The Military Road is paved, the pavement being 16 feet wide. Measuring from the north edge of the north sidewalk along the railway track, it is 33 feet from the north edge of the sidewalk to the north side of the paving, and from the north side of the paving to the south side of the paving is 28 feet, and from the south side of the paving to the north line of the street railway, running east, is 8 1/2 feet; that portion of the road not paved was also suitable and used for travel. In returning from the loop, the street car came along the westerly edge of what is known in the record as Boies street, which veers off from the Military Road at an angle of 45 degrees. At the time of the collision, the street car was crossing the Military Road. This street car was 40 feet in length, and as it proceeded the rear end was still upon the pavement when the truck, coming from the east, struck it broadside, somewhere back of the center of the street car, and from there the truck, in some manner, was turned in a northwesterly direction into Boies street, where it came in contact with a pole used in connection with the transmission of electricity. The plaintiff called the motorman in charge of the street car, as a witness, who testified that it was a bright, clear day and the streets were dry (this is undisputed); that when the street car was about at the north sidewalk, he looked east and saw the truck coming at about the Council Oak Store, which, the uncontradicted evidence shows, is 290 feet east from the crossing; that he then looked to the west, and seeing several automobiles approaching from that direction, he proceeded slowly until they slowed up; that proceeding across the crossing, on looking east, after having looked west, he saw the truck about 50 feet away, approaching him; that at that time, the front end of his car was clear past the center, almost to the south side of the paving; that he put on more power, thinking that he could get away from it, but the collision occurred. The testimony is uncontradicted that at no time was the street car, while crossing the road, traveling at a rate of speed to exceed 5 or 6 miles an hour.
It will be observed that the truck approached the street railway from the east. Palmer, being called as a witness for the plaintiff, testified, in substance, that, as he was proceeding westerly on the Military Road, he was traveling 18 or 20 miles an hour (there is other testimony that he was proceeding from 30 to 35 miles per hour); that the first time he saw the street car, he was 65 or 70 feet from the crossing, might have been a little farther away; that his first thought was to turn left to avoid an accident, and his second thought was that his only chance was to turn to the right, when almost instantaneously the collision occurred.
To the north side of the highway, 150 feet east of the crossing, is an ordinary sign used in primary road construction, denoting the proximity of a railroad crossing.
The evidence discloses that, from a point in the line of the railway 30 feet northwesterly from the north edge of the north sidewalk and all other points lying to the south of a straight line, running from said point to a point in the center of the pavement, 215 feet east of the crossing, there is no obstruction to the view of any one coming from the east, except two telephone poles to the side of the highway. It must be conceded that these two poles did not afford any consequential obstruction to the view.
As Palmer and the three girls came from the east, the plaintiff was located in the seat in the cab on the south side; the window by her...
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