McMurry v. Guth

• Citation: 295 N.W. 133,229 Iowa 776
• Decision Date: 10 December 1940
• Docket Number: 45288.
• Parties: McMURRY v. GUTH.
• Court: United States State Supreme Court of Iowa

295 N.W. 133

229 Iowa 776

McMURRY v. GUTH.

No. 45288.

Supreme Court of Iowa.

December 10, 1940

Appeal from District Court, Polk County; O. S. Franklin, Judge.

Plaintiff a pedestrian, having sustained injuries when struck by an automobile operated by defendant, brought this action at law for damages, alleging negligence on part of defendant. From a judgment in favor of plaintiff, defendant has appealed.

Affirmed.

Bradshaw, Fowler, Proctor & Fairgrave, of Des Moines, for appellant.

Forrest L. Galpin and Isador Robinson, both of Des Moines, for appellee.

RICHARDS, Chief Justice.

One question brought here is whether the trial court erred in refusing to direct the jury to return a verdict for defendant at the close of the offering of the evidence of the respective parties. Defendant moved therefor, upon the ground that under the evidence plaintiff was guilty of contributory negligence as a matter of law, in failing to yield the right of way to defendant in the street where plaintiff was struck, and in assuming a place of peril immediately before the accident, and in failing to do anything to protect himself until only an instant before he was struck. As sustaining this ground defendant cites the following portion of Section 5027.04, Code 1939: " Crossing at other than crosswalk. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway."

Turning to the portions of the record that are pertinent to the ground of the motion we discover no dispute concerning the following: The sun shining, the skies clear, the weather mild, the pavement dry, the accident occurred about 2:45 P. M., March 13, 1939, on University Avenue in Des Moines. Into this avenue, which extends east and west, 38th Street enters from the south, and ends. The point where plaintiff was struck was 90 or 100 feet east of 38th Street. A city block west of 38th Street was 39th Street. It intersects University Avenue at right angles. The avenue is fairly level easterly from the place of the accident, as well as westerly to some point beyond 39th Street.

Coming to the evidence that was controversial, and viewing same as favorably to plaintiff as may reasonably be done, the jury could have found the facts to have been as follows: Not long before the accident plaintiff had come from the west in an automobile that one Farrell was driving. When this car was stopped about 70 feet east of 38th Street and parked at the curb on the south side of University Avenue, plaintiff alighted and walked about 30 feet east upon the parking to a point opposite his residence on the north side of the avenue. At that point on the parking he looked east and observed that upon the four blocks within his clear vision there was no approaching traffic. Then looking west he saw defendant's car at about 39th Street travelling east. At the same time, and continuing to look west, plaintiff stepped off the parking and proceeded north on the paving three or four steps and then stopped. He could then see west past the Farrell car parked at the curb. He thought defendant's car was approaching at 25 to 30 miles per hour, and observed that there was no other traffic on the avenue. Plaintiff then proceeded 2 or 3 steps further and again stopped, this time to let defendant's car go past him. Defendant's car was then at about 38th Street. With plaintiff standing still at that point, which was about 13 feet north of the south curb, the car would have passed by plaintiff without coming into contact with him, had the car continued to proceed east on the direct course it was pursuing. But when the car was about 25 or 30 feet from plaintiff it was pulled over in an altered direction, southeasterly, towards plaintiff. When the change of direction of the course of the car began plaintiff immediately stepped and jumped toward the south. Despite his efforts the right front headlight struck him, resulting in the injuries here involved. The speed of the car at 38th Street was 50 miles per hour. The brakes were set and the tires were burning black marks on the paving as the car passed the Farrell car.

We are of the opinion that the court rightly viewed the question whether plaintiff was contributorily negligent as being one for the jury. The paving was slightly more than 50 feet in width. The jury could have found that, in event of the car passing plaintiff where he stopped and stood, there would have been a space of 2 1/2 to 4 feet between the car and plaintiff, had the driver of the car continued upon the direct course, easterly, that he was pursuing up to the time the car was turned toward plaintiff. And, in following the direct easterly course, the car was travelling several feet south of the middle line of the paving, in a proper line of travel that defendant appeared to have chosen for his use. Plaintiff standing where he did in no way obstructed this course. And it is also true that the north half of the paving was at the time wholly unoccupied by any traffic. It appears to us that the jury might properly have found that plaintiff pedestrian was yielding the right-of-way within the meaning of the statute quoted above. ...