Minks v. Stenberg
| Decision Date | 14 November 1933 |
| Docket Number | 41991 |
| Parties | EDWARD MINKS, Appellee, v. H. S. STENBERG, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--FRANK S. SHANKLAND, Judge.
This is an action at law to recover damages for injuries sustained by the plaintiff, who, while crossing a street in the city of Des Moines, was struck by defendant's automobile. Jury returned verdict for plaintiff. Defendant appeals.
Affirmed.
Putnam Putnam, Langdon & Fillmore, for appellant.
Stipp Perry, Bannister & Starzinger, for appellee.
The accident occurred on the 28th day of January, 1932, at about 8 p.m., at the intersection of Beaver and Urbandale avenues in the city of Des Moines. This intersection is a very peculiar one. The streets do not cross at right angles. In addition, the north and south street, Beaver avenue, changes direction at the intersection, and Beaver avenue north of the intersection is in a northwesterly direction. The Urbandale car line runs northwest at this intersection. The place where the car stops is defined by a concrete curb, and that projects out into the street almost as far as the east sidewalk to the north of the intersection, making the place where the front of the car stops project into the street approximately 30 feet further than the line of the east curb line of Beaver avenue on the south of the intersection projected to the north. On the southwest corner of the intersection is Smith's Cafe; on the southeast corner of the intersection, Nelson's Drug Store; on the northwest corner, the Standard Oil Company station; and on the northeast corner, the Atlantic & Pacific Oil station.
The night of the accident was misty, but the intersection was well lighted with street lights. The appellee came up to this intersection on the west side of the street about 8 o'clock on the night of the 28th of January, 1932, for the purpose of boarding a westbound street car. On account of the condition of the weather he waited inside of the Smith Cafe at a place where he could see the headlight of the street car as it approached from the southeast on Urbandale avenue.
According to the appellee, upon seeing the Urbandale car approaching he walked out of the Smith Cafe to the curb and looked both ways to see whether there were any automobiles approaching. Before he stepped into the street, upon looking south he saw an automobile 150 feet away. The record does not clearly show just exactly the direction that the appellee was taking on this night. He was headed for the street car line, which was a distance of 43 feet from the curb in front of the Smith Cafe. Had he gone straight east from the Smith Cafe he would have had to travel a distance of 48 feet, then made a right-angled turn in the middle of the street, and gone straight north 30 feet 8 inches, making a distance of 78 feet and 8 inches from the door of the Smith Cafe to the street car stop. The appellant was driving his car north on Beaver avenue. According to his testimony, he saw the appellee standing on the curb in front of the Smith Cafe when his car was a distance of approximately 150 feet from the intersection. His windshield wiper was working. It was misting, and he was not able to see out of the window on the left side of the car, but could see through the windshield. There is a dispute in the record in regard to the exact speed that the appellant was driving. There is testimony to show that he was driving somewhere between 20 and 40 miles per hour. This was a busy intersection. According to the appellee, when he reached approximately the center of the street he looked again to the left and then to the right, and while he saw the car approaching from the south it was such a distance away that he believed he had ample time to cross the street. According to the testimony of the appellant, he did not see the appellee except when he saw him standing on the sidewalk near the Smith Cafe, when he was a distance of 150 feet south of the intersection, and did not know, according to his own testimony, what he struck, whether it was a man or a woman. He thought it must have been a person but he was not certain. According to the testimony the appellee was struck about 2 feet from the place where he was going to board the street car. Appellee was struck by the right front fender of the appellant's car. According to the appellant, he was watching the street car, to see whether or not it was going to stop at the intersection, and did not see the appellee at all. The appellant's automobile struck the appellee with such force as to throw the appellee some feet, and, after striking him, ran on some little distance.
The case was submitted to the jury. The jury returned a verdict in the amount of $ 4,000, and from the failure of the court to direct a verdict in favor of the appellant and from the verdict of the jury the appellant has appealed to this court.
I. It is the contention of the appellant that since he was operating his automobile upon the proper side of the street and approaching a busy business intersection and that the appellee left a place of safety upon the sidewalk and walked rapidly diagonally across the intersection, directly into the path of the appellant's car, a verdict should have been directed for the appellant, for the reasons: First, that there is no negligence shown on the part of the appellant, and his negligence, if any, was not the proximate cause of the accident; and, second, that the appellee was guilty of contributory negligence as a matter of law.
The first issue that the court submitted to the jury on the question of negligence was the failure of the appellant to have his car under proper control. The record shows that this was a closely built-up business district; that the appellant looked only once to his left and that when he was a distance of 150 feet south of the crossing, and then drove through this intersection, this busy suburban business district, at a rate of speed estimated by one witness to be between 35 and 40 miles an hour. The fact is also shown by the record that the impact threw the appellee 35 to 40 feet and that the appellant's car traveled some distance after striking the appellee. Certainly these facts would justify the court in submitting the ground of negligence that the appellant did not have his car under proper control.
The next ground of negligence which was submitted by the court was a failure to keep a proper lookout ahead of his automobile. The appellant testified that the window at his left was full of mist, obscuring his view to the left, and that the only time he looked to the left was when he was a distance of approximately 150 feet from the intersection and at that time saw the appellee standing on the curb in front of the Smith Cafe. The headlights of the appellant's car were burning brightly. Appellant testified that he was watching the street car, but, had he been looking straight ahead of his car, he would have been able to see the appellee cross the street in front of him, for the appellee crossed directly in front of the appellant's car; in fact, was almost in the clear, for it was the right front fender of the appellant's car that struck the appellee, and yet the appellant testifies that he did not see the appellee at all and did not know what he had struck. Certainly, in the face of such a record the court was justified in submitting to the jury the question of whether or not the appellant had kept a proper lookout ahead of his automobile, and the jury was fully warranted in finding that the appellant had failed to keep a proper lookout.
The next ground of negligence submitted by the court was the question of the operation of an automobile at an excessive rate of speed. The appellant himself testified that he was approaching this intersection at the rate of 20 miles an hour. Other witnesses estimated the rate of speed as between 35 and 40 miles.
The appellant in his brief and argument cites a great many cases of children dashing in front of on-coming automobiles, where the drivers had...
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