Klink v. Bany
| Decision Date | 02 April 1929 |
| Docket Number | 39318 |
| Citation | 224 N.W. 540,207 Iowa 1241 |
| Parties | PAUL KLINK, Appellee, v. THEODORE BANY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Bremer District Court.--C. H. KELLEY, Judge.
Plaintiff predicates this action on the negligence of defendant in driving the latter's automobile, and prays for damages against the defendant, for the injuries received, both present and permanent, for medical attention, hospital care and nursing, which, in the aggregate, was in the sum of $ 8,613.50, with interest thereon at 6 per cent from the first day of August, 1925, and for costs. The defendant answered by a general denial, and specifically denies that the plaintiff was free from contributory negligence, but asserts that the injuries of plaintiff, as alleged, were wholly due to his own negligence, directly contributing thereto. The jury returned a verdict in favor of the plaintiff in the sum of $ 1,173.50. Motion for a new trial was overruled, and judgment was entered in favor of the plaintiff, in conformity to the verdict. The defendant appeals.
Reversed.
Sager & Sweet, for appellant.
Mears & Lovejoy, Jensen & Gwynne, and H. L. Leslie, for appellee.
DE GRAFF, J.
It is a defined and well settled rule of law in this state that a driver of a motor vehicle (defendant) is not legally bound "to anticipate or know the intentions or purpose" of a person who, being in a zone of safety immediately prior to a collision with said vehicle, suddenly and without warning enters a zone of danger, resulting in an injury to the said person by reason of collision with the vehicle. Bishard v. Engelbeck, 180 Iowa 1132, 164 N.W. 203. The decision in the Bishard case, with other cases presently cited, is stare decisis in the instant case.
A fortiori is this principle of law applicable, as in the case at bar, when the defendant auto driver was not aware of the presence of the person injured, and acting, under the circumstances, as a reasonable person, was not bound to discover the presence of the person injured. The doctrine of last clear chance is not here involved. Let us examine for a moment the Bishard case, supra. There was a directed verdict in favor of the defendant auto driver, and this ruling was sustained on appeal to this court. The accident happened in the city of Des Moines. Plaintiff's decedent, a six-year-old boy, was riding on the end of a wagon. The boy was on his way to school, and at a certain point near his school building, he suddenly jumped off the wagon and started east toward the school ground. The time was about 12:45 P. M. The street was paved, and the pavement was dry. The direction of both the wagon and the defendant's auto was toward the south. The boy was struck by the fender of the defendant's auto, and "the time allowed the driver to set the brakes and stop the automobile after the boy climbed to the pavement was very brief," and "the distance traveled by deceased [plaintiff's decedent] from the rear end of the wagon to the point of the collision could not have exceeded a few feet."
It is further said in the opinion:
"He [the auto driver] could not have applied the brakes, guided the machine, and given a warning signal after the boy started from the pavement to the east, before the collision."
Taking into consideration all of the facts and the applicable law, as recited in the opinion, the court, speaking through Stevens, J., concluded (page 1140):
"He [auto driver] was not bound to anticipate or know the intentions or purpose of deceased, if he [auto driver] saw him sitting on the end of the wagon box, nor, indeed, could he know."
The only legal conclusion that can be drawn from the case on both the law and the fact side is that it was a case of inevitable accident, and therefore the theory of non-liability applied. The case at bar is quite analogous, on the facts and the law, to the Bishard case, supra, and that case should be viewed as controlling.
Before passing to the line of decisions of this court based on the Bishard case, supra, let us turn to the facts of the instant case, which are stronger to support a directed verdict than the facts in the Bishard case, supra, and the later cases based thereon. Here it is shown that a boy a few months past seven years of age was riding home from school October 10, 1924, in the auto of a neighbor, who, in the spirit of kindness, had invited the boy and his sister to ride. This auto is known in the record as the "Ducker car," but Ducker is not involved in any sense with the claimed liability. The Ducker car was moving south on a dirt road, infrequently used, which road was not a marked highway or numbered trial. This roadway at or near the place of the accident was 23 feet and 6 inches "between grass." The two tracks in the road were about three feet apart. Both cars, respectively, were being driven on the proper side of the roadway, the Ducker car moving south, and the defendant's car moving north. The Ducker car stopped at a point about opposite site the gate of the Klink yard and home where the children in question lived. The Klink home was on the east side of the roadway. This stop left the Ducker car on the west side of the roadway, and necessarily, the children would have to cross the pathway traveled by a car moving north on this roadway. The defendant did not see the boy in the Ducker car, and had no reason to anticipate the presence of the boy, or that the Ducker car was stopping to permit these children to get out to cross the road to reach their home. In fact, the defendant did not know that the boy was in the Ducker car, and did not see him until about the time that the fender of defendant's car struck the boy. The boy had been riding in the rear seat of the Ducker car, which was a Ford touring model, with winter top, in which the curtains slide up and down.
Ducker was not an eyewitness to the accident, but he did testify to some antecedent facts, and, inter alia, said that, when he slowed down and came to a stop, the Klink boy started to get out of the car, and as the car was slowing down, the Klink boy was almost out of the car. When the Ducker car stopped, the boy jumped to the ground, and hurriedly went around the rear of the car. This fact in itself discloses the reason why the defendant did not see the boy and did not know of his presence until the boy ran into the pathway of the defendant's car. The only eyewitness to the accident called by the plaintiff was one Wedemeier, who, at the time of the accident, was 35 to 40 rods from the place of the accident. He testified:
Ducker's testimony clearly shows that the boy was in a hurry. The boy had already prepared himself to leave the car before it stopped, and just as it stopped, he was on the footboard ready to jump, and did jump. Ducker heard the girl scream, which was about the time the boy jumped off the car, and says that it was "practically instantaneous." As said in the Bishard case, supra, it may well be said in this case that the defendant auto driver had no time to apply the brakes, even if he had seen the boy immediately before the collision. In the instant case, the defendant driver did not see the boy. The time interval between the leaving of the Ducker car by the boy and the collision was, as said by one of the plaintiff's witnesses, ...
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