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.
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...
