Kemmish v. McCoid
| Decision Date | 15 December 1921 |
| Docket Number | 34093 |
| Citation | 185 N.W. 628,193 Iowa 958 |
| Parties | J. W. KEMMISH, Appellant, v. GEORGE W. MCCOID, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED MAY 15, 1922.
Appeal from Harrison District Court.--GEORGE W. CULLISON, Judge.
ACTION to recover damages to plaintiff's automobile, caused by a collision with defendant's automobile. At the close of plaintiff's testimony, the court directed a verdict for the defendant, and plaintiff appeals.
Affirmed.
Robertson & Havens, for appellant.
Bolter & Murray and John P. Organ, for appellee.
The collision complained of occurred at or very near the intersection of a private driveway on the west side of a north and south public highway, about one-half mile south of Logan, with said highway. The public highway was 60 feet, and the traveled portion about 40 feet in width. The ground was practically level in both directions for a considerable distance. The private driveway was on a level with the traveled portion of the road, and the view of one coming into the highway from the private driveway was wholly unobstructed for several hundred feet to the north, possibly for 60 rods. Likewise, the view of the driveway from the highway was unobstructed. There was a slight decline to the north from a point at least 125 feet north of the driveway, but it was not sufficient to interfere with the view from the driveway for several hundred feet north from its intersection with the road. The collision occurred about 5:30 P. M., August 1 1919.
Plaintiff's automobile, which was being driven by his wife, was a large Marmon touring car. The defendant was driving a Franklin car. Mrs. Kemmish testified that, when she and her three children got into the Marmon car, it was standing in the dooryard a short distance north of the driveway, and about 60 or 65 feet west of the west side of the highway; that she started the car in low, and had not shifted the gears when the collision occurred; that she was traveling about six miles per hour; that she looked north to see if a car was approaching from that direction, just as she started toward the driveway and again immediately before entering the highway; that she did not see the defendant's car when she looked, nor until the collision took place. Her sister, whom she had been visiting, and who was standing in the dooryard of her home north of the driveway, testified that she first saw defendant's car approaching from the north at 30 miles per hour, when it was about 20 feet north of the driveway; that she saw her sister turning south, and called to her; and that the collision occurred immediately thereafter, without her sister's noticing her warning. There was a galvanized iron culvert in the highway about twelve feet from the property line and at the west edge of the traveled way, which was covered so that it in no wise interfered with the movement of plaintiff's automobile. Mrs. Kemmish and her sister agree substantially in their testimony that the right hind wheel of plaintiff's automobile had passed over the culvert and was about four feet east of it at the time of the collision; and that defendant's automobile had passed over the left front fender of plaintiff's car and ran in a southeasterly direction for 150 or 160 feet to the east side of the road before it came to a stop. All of the witnesses agree that the driveway was on a level with the highway, and that the traveled portion of the road was in good condition, and was about 40 feet in width. The exact length of plaintiff's car is not shown, but the wheel base from hub to hub was 136 inches. Mrs. Larson, the sister of Mrs. Kemmish whom she had been visiting, and her husband differ somewhat as to the course of plaintiff's car after it was started, and until it reached the highway. Mrs. Larson testified that her sister drove it southeast into the driveway and then east; whereas her husband, who was not present, testified that the tracks indicated that she had driven to the southeast and into the highway without entering the driveway at all. A plat prepared by him and offered in evidence so shows. Mrs. Kemmish admitted that she did not sound the horn or give any warning of her approach toward and into the highway. She also testified that she turned to the right and toward the west side of the traveled portion of the highway as sharply and rapidly as she could, and other witnesses testified that the car was a few feet from the west side, facing almost directly south, a few minutes later, when they arrived on the scene. Plaintiff's three children, one of whom was about twelve years of age, occupied the rear seat of the car. The exact position of plaintiff's automobile at the time of the collision is open to some speculation, but the physical facts leave no doubt that the radiator extended out into the highway in a somewhat southeasterly direction. Photographs introduced in evidence show that plaintiff's car was struck immediately in front of the rear seat. The running board and front fender were damaged and the frame sprung so that it was necessary to send it to the factory to be repaired. It is quite clear that defendant's car did not strike plaintiff's car at right angles.
The testimony also showed that the defendant, as soon as his car came to a standstill, went back and inquired of Mrs. Kemmish whose car it was, and during the conversation said he was showing the farm across the road, which he had formerly owned, to his companions, and did not see plaintiff's automobile before the collision.
At the close of plaintiff's testimony, the court directed the jury to return a verdict for the defendant, upon the ground that the evidence showed conclusively that Mrs. Kemmish was guilty of contributory negligence. This is the vital and controlling question in the case. The argument on both sides proceeds on the assumption that the defendant was negligent, and that plaintiff may be charged with the contributory negligence, if any, of his wife.
Chapter 2-B, Title VIII, of the Code Supplement, 1913, was repealed by Chapter 275, Acts of the Thirty-eighth General Assembly but Chapter 275 did not go into effect until December 1, 1919, which was after the accident in question. Section 1571-m18 of the Code Supplement makes it the duty of the driver of a motor vehicle meeting another traveling in the opposite direction to turn to the right; and of one overtaking or passing another to drive to the left; of one before stopping, turning, or changing the course of the car, to ascertain whether there is sufficient space to make the movement in safety, and to give a visible or audible signal to the crossing officer, if any, or to the drivers of vehicles following, of such intention, by raising the...
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Hittle v. Jones
...233 N. W. 545), supra; Chandler v. Buchanan, 173 Minn. 31, 216 N. W. 254;Smith v. Ormiston, 242 Mich. 600, 219 N. W. 618;Kemmish v. McCoid, 193 Iowa, 958, 185 N. W. 628. See, also, Hutchinson v. Sioux City Service Co. et al., 210 Iowa, 9, 230 N. W. 387;Middleton v. Omaha & Council Bluffs St......
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Hittle v. Jones
... ... 545), supra; Chandler ... v. Buchanan, 173 Minn. 31, 216 N.W. 254; Smith v ... Ormiston, 242 Mich. 600, 219 N.W. 618; Kemish v ... McCoid, 193 Iowa 958, 185 N.W. 628. See, also, ... Hutchinson v. Sioux City Service Co., 210 Iowa 9, ... 230 N.W. 387; Middleton v. Omaha & Council ... ...
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...the highway implies the duty to see what was in plain sight.' Vandervert v. Robey, 118 Neb. 395, 225 N.W. 36, 37, citing Kemmish v. McCoid, 193 Iowa 958, 185 N.W. 628.' However, in this regard: 'A person traveling a favored street protected by a traffic signal, of which he has knowledge, ma......
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