Jarvis v. Stone
| Decision Date | 02 May 1933 |
| Docket Number | No. 41614.,41614. |
| Citation | 247 N.W. 393,216 Iowa 27 |
| Parties | JARVIS v. STONE ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Louisa County; James D. Smyth, Judge.
Appeal from judgment for damages for personal injuries sustained by being run down by an automobile upon the public highway. The opinion states the facts.
Reversed.E. R. Hicklin, of Wapello, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellants.
Seerley, Clark & Hale, of Burlington, and H. O. Weaver, of Wapello, for appellee.
On the 14th day of May, 1931, plaintiff was riding, with a fellow employee, in a truck, hauling a trailer laden with corrugated culvert tubes. One end of the tubes rested in the truck and the other was carried on the trailer. The load was seven or eight feet high, measured from the road. They were traveling westward on a straight, level stretch of road about three miles west of Wapello. The stretch of highway was surfaced with gravel, and the roadway was about thirty-seven feet in width. A short time prior to the accident one of the wheels of the trailer came off. It was put back on and fastened somewhat insecurely. The driver of the truck stopped at the place where the accident occurred to examine this wheel. Plaintiff and the driver were riding in the seat of the truck, which was not equipped with a cab. The truck was stopped very close to the north shoulder of the roadway. When it came to a stop, the occupants alighted. The driver inspected the wheel, and then gave some attention to the floor boards of the truck. The plaintiff alighted on the right side of the truck, and went around the front of the truck, and continued southerly upon the roadway. In the meantime the defendant Stone was following the truck, driving a car owned by his fellow defendant. As he passed the truck, the plaintiff received the injuries of which he complains. These circumstances have been very briefly set forth, for the reason that they will require elaboration in the course of the opinion.
[1] I. At the close of plaintiff's testimony, and at the close of all the evidence, a motion for a directed verdict was made by the defendant, upon the ground, among others, that the plaintiff was guilty of contributory negligence. We shall briefly review the evidence, giving to it the interpretation most favorable to plaintiff in accordance with well-established rules.
The road was straight and level in the vicinity of the accident. There were no obstructions to view. The evidence discloses that, eastward from the place of the accident, was an unobstructed view of a mile or two of the road. The tubes being hauled were twenty feet long, so the length of the truck and load must have been not less than twenty-five or thirty feet. The driver of the truck, although engaged with the floor boards of the truck, says the Stone car was traveling at the rate of thirty-five miles per hour, as it passed the truck, and this is the highest rate of speed given to it. He says the car was within three or four feet of the truck as it passed. Plaintiff's story of what happened is most favorable to him, and for the purpose of this discussion it will be taken as true. He says:
Plaintiff fixes the place where he was when he looked up and down the road as being from two to four feet west and the same distance south of the front end of the truck. From this point he says he walked toward the rear end of the truck--the direction from which the Stone car was coming--and had taken one or two steps when he was struck by the car. Asked whether, as he looked up and down the road from this point, he observed a car approaching, plaintiff said:
The testimony of other witnesses is that the Stone car was not traveling so fast; that plaintiff did not stop and did not look; that he was half running across the road; that the Stone car was five or six feet from the truck as it passed; that the driver of the car had diverted it southerly before the impact; and that plaintiff ran into the side of the right front fender of the car. But for the purpose of the present discussion such matters are given no consideration, we will take the case in the light most favorable to plaintiff.
[2] In this situation it is not open to question but what, if plaintiff had looked and given heed, as he stood some two or four feet west and south of the truck, the accident would never have happened, and, if after he had so looked he had given any heed to his surroundings, the accident would never have happened, for he walked directly toward the approaching car. From the point where he looked and started eastward, the car would have been in view at a distance equal to the length of the loaded truck, something over twenty-five feet, and the additional distance during which the car angled over to get into a position on the road to pass the truck, and in order that the overtaking car would not be in view, at whatever distance it may have been, it would be imperative that it be immediately to the rear of the truck and in very close proximity thereto. Citation of cases is unnecessary upon the proposition that plaintiff was guilty of contributory negligence as a matter of law.
II. It is urged that the record contains no evidence that negligence, on the part of the defendant driver, was the proximate cause of the injuries complained of. This assignment is argued on the theory that the driver of the car was not bound to assume that appellee was present, hidden from view by the load of tubes, or that he would dart from a place of safety into the path of the car, and that “the act of the pedestrian is, under such circumstances, the proximate cause of the accident; and negligence of the driver, if any, is not material.” The last part of the preceding sentence is quoted from appellant's argument. In view of this attempt to restate the assignment of error, the argument is in reality addressed to the question whether contributory negligence on the part of appellee was not the proximate cause of the injuries, rather than to the question presented by the assignment of error, namely, Does the record make out a jury question as to whether the driver of the car was negligent?
[3] In considering this question, the evidence must be given its greatest weight in favor of appellee. The traveled portion of the road-way was thirty-seven feet in width. The truck was parked very close to the north side of the road, inferentially leaving in the neighborhood of thirty feet of the roadway unobstructed to the south of it. Still the car was driven within two to four feet of the truck in passing, at the rate of thirty-five miles per hour. There appears to have been no reduction of the speed of the car. The defendant driver testified in part as follows:
“I noticed it (the truck) was going slow at the time I turned out to go around him. I didn't know that he had stopped. I knew he had stopped when the man came out in front of it.
Q. You weren't paying much attention to them? A. I wasn't paying attention to the truck, no, sir.
Q. It never occurred to you that a man might be around that truck, standing around that truck, that didn't occur to you at all? A. I gave him plenty of room the usual distance. * * * I did not observe the driver's hand held out as a warning that he was going to stop.
Q. You weren't looking? A. Not after I got out in the clear. I paid no more attention.
Q. And when you speak of being in the clear...
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