Larsh v. Strasser

• Decision Date: 27 June 1918
• Docket Number: No. 31888.,31888.
• Citation: 183 Iowa 1360,168 N.W. 142
• Parties: LARSH v. STRASSER.
• Court: Iowa Supreme Court

183 Iowa 1360

168 N.W. 142

LARSH

v.STRASSER.

No. 31888.

Supreme Court of Iowa.

June 27, 1918.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action for damages resulted in a judgment for defendant. The plaintiff appeals. Affirmed.A. A. McGarry, of Des Moines, for appellant.

C. Woodbridge, of Des Moines, for appellee.

LADD, J.

The plaintiff was riding a motorcycle in passing south on Twenty-Eighth street when it came in collision with a small automobile roadster coming from the west on High street and was severely injured.

The petition charged that defendant was negligent in two respects, not sounding warning of his approach, and in driving his car at an excessive speed, and pleaded that plaintiff was without fault. Though the defendant filed an answer, he did not appear at the trial. Appellant's contention is that the court erred in directing a verdict for defendant on the ground of there not being enough evidence to carry the issues to the jury. It disclosed that neither party sounded any warning. Plaintiff testified that:

“There was a bank on the west side of Twenty-Eighth street. It cut off my view from him. It was 6 or 8 feet tall, the bank on High. I looked west on High before I went to the intersection, and I saw nothing, and could see 40 or 50 feet on High, and could have turned my motorcycle east. I could have kept out of the way of the car if I had seen it. * * * I could not see the car when I looked. I could have turned east. Q. And avoid the collision? A. I couldn't have avoided it; if he was going to hit me, he would have hit me.”

Laird, who lived in the second house east of Twenty-Eighth street on the north side of High street, swore to having seen the vehicles immediately after the collision; that there was quite a cut in the west side of Twenty-Eighth street near the intersection--

“more than 2 1/2 or 3 feet; it is about 4 feet. Q. There is not enough cut there to prevent a man riding a motorcycle seeing over it and seeing a man coming east on High street, is there? A. I wouldn't know hardly what to say about that. It seems to me it is quite deep.”

Kreatch, who lived on the northwest corner of Twenty-Eighth and High streets, testified to hearing the noise of the collision, and that the vehicles and plaintiff were about 25 or 30 feet east of the line of Twenty-Eighth street; that there is a cut about 4 feet deep at the corner where it is deepest; that his terrace was about 3 feet deep; that the rise of the hill was quite a good deal, but less as you recede to the north. “I think in going south on Twenty-Eighth street you can see right across my lawn and see an automobile coming east on High street. I cut my lawn off practically level. At the corner it is quite a rise, and the further back from the corner the better you can see across.”

[1] On what part of the street the motorcycle was moving does not appear, but plaintiff said, “The machine I was riding after he struck it went about 50 feet.” Nor was there any direct evidence of...