Jones v. Sioux City

• Decision Date: 17 January 1919
• Docket Number: No. 32186.,32186.
• Citation: 185 Iowa 1178,170 N.W. 445
• Parties: JONES v. SIOUX CITY ET AL.
• Court: Iowa Supreme Court

185 Iowa 1178

170 N.W. 445

JONES

v.SIOUX CITY ET AL.

No. 32186.

Supreme Court of Iowa.

Jan. 17, 1919.

Appeal from District Court, Woodbury County; George Jepson, Judge.

Action for damages for the death of plaintiff's intestate. The action was brought against the city and Ray Callander, an employé of the defendant city, who was driving the automobile at the time. No evidence was introduced on behalf of the defendant city, and at the conclusion of the plaintiff's evidence the trial court sustained a motion to direct a verdict in favor of the city. Callander defaulted, and the case was submitted to the jury as to him, and a verdict for $13,000 returned. The plaintiff appeals from the ruling of the court, and the judgment rendered against him for costs. The opinion shows the facts more in detail. Reversed and remanded.Evans & Evans, of Sioux City, for appellant.

Schmidt & Pike, of Sioux City, for appellee.

PRESTON, J.

Deceased was struck by an automobile belonging to the city, and driven by its employé, Callander. The petition alleges substantially that the city was negligent, for that the car was being driven at a high, reckless, and negligent rate of speed; that the pavement of the street at the place where the accident occurred was in a rough and uneven condition, and that such defective condition of the street was a concurring proximate cause of the injury, and that the collision would not have happened if the street had not been in such defective condition; that the city kept Ray Callander, its employé, as driver of said car, well knowing that he was a careless and reckless driver; that the street was not properly lighted. We do not understand appellant to now rely in this court upon the two last grounds. It may be that the fact that the street was poorly lighted at the point in controversy, would have a bearing upon the other grounds of alleged negligence, in operating the car at a high rate of speed over defective paving.

The answer of defendant city denies these allegations, alleges contributory negligence, and in a second division pleads affirmatively that at the time of the collision the motorcar driven by Callander was the police car of said city; that said Callander and the occupants of said car were members of the police department, and were on duty as employés of said department at the time of the collision; that said officers were then acting under orders of their superior police officer at headquarters, and were answering a police call; that said city was acting in a governmental capacity, and performing a governmental duty, as an agent to the state, in enforcing police regulations in said city and state, and is not liable for the acts or alleged wrongs set out in plaintiff's petition. Plaintiff's reply denies that the automobile was answering a police call, and denies that the city was at that time acting in a governmental capacity, or performing a governmental duty.

The injury occurred on Fourth street, which runs east and west, and between Jackson and Nebraska streets, running north and south. Jackson street is to the east. There is an alley between these streets; plaintiff's father has a store on the south side of Fourth street, and a little east of the alley. There are street car tracks on Fourth street. The collision occurred about 11 o'clock at night, May 18, 1916. Deceased, an experienced driver, was driving her father's Franklin car, her father in the back seat. Deceased turned into Fourth street from Jackson, going west on the north side of Fourth street, and proceeded west until she reached the alley intersection, or perhaps a little west of the alley, when she turned south, intending to head the car east at her father's store, on the south side of Fourth street and east of the alley. When she turned south, she went until she reached the south rail of the south street car track. At that time her father noticed the city automobile coming from the west on Fourth street, about a block distant, and he told his daughter to stop the car, which she did at once. When her car stopped, the right front wheel was just over the south track, and her car was facing east and south. When she turned south she was driving at a speed of about 6 or 8 miles an hour. When she went to turn, the street seemed clear; but, as said, the city car was noticed about a block west. The city car was approaching at 45 miles an hour, and did not slow down. It came down the center of the street and turned to the south in attempting to pass the Jones car. The city car struck the Jones car on the right-hand side, and the front end of the Jones car was knocked around northeast. Deceased was knocked from the car and instantly killed. The street was poorly lighted, and dark. A witness testifies that the city car gave no signal or warning that he heard. The pavement on Fourth street, at the place and immediate locality where the collision occurred, was at that time, and a long time before, in a rough and uneven condition. The cobblestones next to the street car tracks are higher than the rest of the pavement, and some of them are missing. Holes are worn 3 to 4 inches deep in places. There was room for the city car to pass between the Jones car and the sidewalk to the south. The distance was 12 or 15 feet from the front end of the Jones car to the south curb of Fourth street.

Appellant contends, and the matter will be referred to later, that since there was room enough for the city car to have passed the other, and that the driver tried to do so, and would have done so, had it not been for the defective condition of the street, but that when he attempted to turn across the high cobblestones and the ruts, he momentarily lost control of his car, it was for the jury to say whether there was concurrent negligence on the part of the city, because of the defective condition, for which the city would be liable, even though they are not liable for the other causes, and that the trial court overlooked this allegation of the petition. It was shown that the city car was owned and operated by the city, and was driven by Callander, who was an employé of the city. Callander was not a policeman, and was employed to drive this car. It is admitted in the pleadings that Callander was driving the car for the city.

It is contended by appellant that the evidence shows that at the time of the collision Callander and the city automobile were upon a ministerial mission, and not a governmental one. There is no evidence that the police officers in the city car were answering a police call, as alleged in the answer. The evidence on this subject was drawn out on cross-examination of plaintiff's witnesses. This evidence was put in after defendant had made its motion to direct a verdict; the court indicating that the motion was well taken, and that the burden was on plaintiff to show that the car was not being used for governmental purposes. The court permitted plaintiff to introduce further testimony, and the motion to direct was then renewed. Briefly, the evidence at this point is that there were uniformed policemen in the city car. On the rear of the car was marked “Police.” One of the occupants testified that at the time of the collision he was on his way to his beat in the eastern part of the city; that he had answered roll call previously to this, and that he was on duty at the time of the collision. The city car was a six-cylinder seven-passenger Buick. The record does not show any instance when this car was used as a police car at any other time.

The plaintiff offered to prove that prior to the accident the city car had been used for ministerial purposes, such as taking members of the council out to inspect work connected with the city, at different times, and that about May 18, 1916, the day of the accident that Callander took members of the council out to inspect property; and that in the spring of 1916 Callander took the car in question and delivered the primary ballots to the various voting places in the city, and at other times took a probation officer and a health officer on trips in regard to the duties of their office. The court ruled the evidence out on the ground that the material question was what use the car was being put to at the time of the accident.

The motion to direct a verdict was sustained generally, and was on the ground that there was no evidence of negligence as alleged; no negligence in the performance of any duty for the city; that the evidence fails to show that the occupants of the city car were acting in the performance of any duty for the city; that the evidence fails to show affirmatively that any duty alleged to be violated by the city was connected with a private or corporate duty, as distinguished from a governmental duty; that the alleged negligent person was at the time of the collision a servant of the city, or that the act in connection with which the alleged tort...