Mowrey v. Schulz

• Decision Date: 18 March 1941
• Docket Number: 45474.
• Citation: 296 N.W. 822,230 Iowa 102
• Parties: MOWREY v. SCHULZ et al.
• Court: Iowa Supreme Court

296 N.W. 822

230 Iowa 102

MOWREY v. SCHULZ et al.

No. 45474.

Supreme Court of Iowa.

March 18, 1941

Appeal from District Court, Iowa County; Jas. P. Gaffney, Judge.

Action at law to recover for injuries to minor bicyclist from collision with automobile. From judgment for plaintiff defendants appeal. Opinion states the facts.

Reversed.

STIGER, J., dissenting.

Hatter & Harned, of Marengo, for appellants.

Swift & Swift, of Marengo, and Wallace & Claypool, of Williamsburg for appellee.

OLIVER, Justice.

On October 31, 1938, at about 5:30 p. m., Russell Mowrey, then aged 9 years, while riding his bicycle on Marengo Avenue, in the business district of Marengo, Iowa, was injured in a collision with an automobile. He brought this action at law by Lee Mowrey, his next friend, to recover damages from Vaughn Schulz, the driver, and Malcolm Chevrolet Company, and T. H. Malcolm, the owners of said automobile.

Marengo Avenue is a north and south paved street, 48 feet wide from curb to curb, on the east side of which is a 10-foot parking and a cement sidewalk about 5 feet wide. The accident happened when the boy rode his bicycle west into the east part of the avenue from an alley which intersects it at right angles. The east side of the avenue, south of the alley intersection, was filled with automobiles parked perpendicular to the curb, which, in effect, narrowed the portion of the avenue open to travel. Hence, the boy, after emerging from the alley, continued west about 30 feet before he reached the lane of northbound traffic in the avenue. It was at about this point that the bicycle and defendants' north-bound automobile collided. Because of the closely parked cars, the boy on the bicycle was not visible to defendant Schulz until the automobile reached the place where the street was intersected by the alley and apparently the automobile was not previously visible to the boy. The boy was then about the length of a bicycle from the car. Although witnesses for defendants placed the speed of the automobile at 15 to 20 miles per hour, witnesses for plaintiff estimated its speed at 35 miles per hour. The statutory speed limit at that place was 20 miles per hour. When Schulz saw the boy he swerved the car to the left and applied the brakes. As we understand the record the car stopped a few feet north of the alley intersection.

The boy had ridden out of the alley across the sidewalk and into the travelled lane of the avenue without stopping. There was evidence that the boy reduced his speed before the collision and evidence to the contrary.

Defendants' motions for directed verdict were overruled and the case was submitted to jury upon two grounds of alleged negligence, first, unlawful and excessive speed of the car, and second, failure to have it under control and to reduce its speed to a reasonable and proper rate when approaching and traversing the alley intersection. The verdict and judgment were against defendants and they appeal.

Essential to the decision of errors assigned by appellants is the determination of some of the legal rights and duties of vehicular traffic at street and alley intersections, under Chapter 251.1, § 5000.01 et seq., of the 1939 Code, entitled Motor Vehicles and Law of the Road. Preliminary thereto, it should be said a person riding a bicycle is subject to its general provisions (section 5017.07); alleys are highways and right of way means the privilege of the immediate use of the highway. Subsections 45 and 61 of Code, Section 5000.01.

Code, Section 5029.13, provides that the driver of a vehicle emerging from an alley, driveway or building shall stop such vehicle immediately prior to driving onto a sidewalk or into the sidewalk area extending across any alleyway or private driveway.

Appellee contends Section 5029.13 was enacted solely for the protection of pedestrians using the sidewalk across the alley and not for the benefit of vehicular traffic upon the intersected street, and that the rules governing a vehicle about to enter a street are the same whether the vehicle comes from an alley or another street. In this connection appellee refers to a former statute (5035 of 1935 Code) as a highway right-of-way statute and points out certain differences in language and arrangement of the present statutes, (enacted in 1937) which he argues evidence a legislative intent to make Section 5029.13 a sidewalk pedestrian statute. One defect in this argument and historical review is that it assumes Section 5029.13 and other sections of the present law to be amendments or revisions of the former chapter. This is not historically correct. The former Chapter 251 was repealed. The present Chapter 251.1 is, with various exceptions and changes, merely an enactment of the Uniform Act Regulating Traffic on Highways, which has been adopted by various states. Code, Section 5029.13, is almost identical with Section 49 of the Uniform Act and Code, Section 5026.05, was apparently taken from Subsection a of Section 36 of the Uniform Act.

But although its form and language is largely that of the Uniform Act, the present act is in many respects quite similar to the former Iowa act despite differences in language and arrangement. Therefore, where the present act apparently expresses the same thought as the former, mere differences in words or arrangement should not generate an inference of legislative intent to change the former rule.

In view of this historical background we do not agree with appellee that the language of Code, Section 5029.13, that the driver shall stop the vehicle emerging from an alley immediately prior to driving onto a sidewalk, etc., when compared with the language of Section 5035 of the 1935 Code that vehicles coming from alleys shall stop immediately before entering a public street, justifies the inference that the legislature thereby intended to substantially change the scope of ...