McElhinney v. Knittle

• Court: Iowa Supreme Court
• Writing for the Court: ALBERT, J.
• Citation: McElhinney v. Knittle, 199 Iowa 278, 201 N.W. 586 (Iowa 1925)
• Decision Date: 20 January 1925
• Docket Number: 36242
• Parties: THOMAS MCELHINNEY, Appellant, v. CAROLINE KNITTLE et al., Appellees

201 N.W. 586

199 Iowa 278

THOMAS MCELHINNEY, Appellant, v. CAROLINE KNITTLE et al., Appellees

No. 36242

Supreme Court of Iowa, Des Moines

January 20, 1925

Appeal from Waterloo Municipal Court.--JOHN W. GWYNNE, Judge.

AN action for damages growing out of the plaintiff's having been struck by defendant's automobile. Jury returned a verdict for the defendant, and plaintiff appeals.

Reversed.

Pike Sias, Zimmerman & Frank and Mears & Lovejoy, for appellant.

J. C Murtagh and McCoy & Beecher, for appellees.

ALBERT J. FAVILLE, C. J., and EVANS, STEVENS, ARTHUR, and DE GRAFF, JJ., concur.

OPINION

ALBERT, J.

Washington Street in the city of Waterloo, Iowa, runs in a southeasterly and northwesterly direction, and is intersected by Park Avenue at a right angle. At the time in question, plaintiff, who was a man 72 years of age, was crossing Washington Street, expecting to turn to his right and cross Park Avenue. There was a severe rain storm prevailing, and plaintiff was without rubbers. The evidence tends to show that there was water on the streets and in the gutters. Plaintiff testifies that, when he reached the curb line on Washington Street, the leaves had obstructed the flow of water, and by reason thereof he turned to the right to a point near the center of the intersection of said two streets, where he was struck by defendant's automobile. The court, in submitting the case to the jury, gave the following instructions:

"Instruction IV A. In determining whether or not plaintiff was guilty of contributory negligence, you should consider, as may appear from the evidence, the character of the intersection; the state of the weather; whether the place of crossing was light or dark; the traffic upon the street; and whether or not such traffic could, with reasonable diligence, have been observed by the plaintiff; whether or not he looked before or while he was in the street; his manner of crossing said street; and every other fact and circumstance which tends to show that he did or did not use care commensurate with the dangers to be reasonably apprehended, and did or did not use that degree of care which a reasonably careful and prudent person would have used in the same or similar situation. It is the duty of a pedestrian, in crossing a street, to make such use of his senses of sight and hearing, and to take such measures for his safety and to avoid accidents, as an ordinarily careful and prudent person would take under the same or similar circumstances; but he is not necessarily negligent if he fails to keep a constant lookout for approaching vehicles. If you find from the evidence that the plaintiff failed to make such use of his senses of sight and hearing and to take such measure for his safety and to avoid accident as an ordinarily careful and prudent person would take under the same or similar circumstances, and that such failure contributed to cause the injury and damages complained of, then the plaintiff cannot recover, and your verdict should be for the defendants.

"Instruction IV B. In connection with the proposition of contributory negligence, you are further instructed that the ordinances of the city of Waterloo provide as follows: 'Every pedestrian, when crossing any street at the intersection thereof with any other street within the business district of the city, shall cross the street in a straight line, and, in all cases, shall turn at a right angle on the established crossing around the center of the street in reaching the corner diagonally opposite.' The intersection of Washington Street and Park Avenue is included within the business district. A violation of such ordinance would be negligence. If you find that the plaintiff violated said ordinance, and that such violation, if any, caused or contributed to cause the injury and damages complained of, then the plaintiff cannot recover."

Before the submission of the case, the plaintiff requested the court to give the following instructions:

"You are further instructed that, if the pavement...