Nagel v. Bretthauer
| Decision Date | 17 June 1941 |
| Docket Number | 45638. |
| Citation | 298 N.W. 852,230 Iowa 707 |
| Parties | NAGEL v. BRETTHAUER. |
| Court | Iowa Supreme Court |
Appeal from District Court, Monona County; A. O. Wakefield, Judge.
Plaintiff administrator seeks damages from defendant by reason of the claimed negligence of defendant that plaintiff asserts caused the death of decedent. The trial court directed a verdict in favor of the defendant.
Affirmed.
Prichard & Prichard, of Onawa, and O. P. Bennett, of Des Moines, for appellant.
Welch & Acrea, of Logan, for appellee.
Plaintiff as administrator of the estate of Albert Otto Nagel, alleges in his petition in this cause substantially as follows:
That on November 9, 1939, at about 7 o'clock P. M. the decedent, Albert Otto Nagel, was on a public highway in Monona County, Iowa, the road at said place running in a north and south direction; that at the time in question the decedent was on the west side of the highway and in a place where he had a right to be; that said position on the west side of said highway was a position of apparent safety with respect to any automobile approaching said position from the south; that at or about the time in question and while the decedent was in a position of apparent safety on the highway he was struck by an automobile driven by the defendant, John Bretthauer, said automobile then being driven along the highway in a northerly direction; that Nagel died soon after he was struck as the result of injuries received by him when struck by defendant's automobile that the injuries received by the decedent, Nagel, and which resulted in his death, were due to the negligence of the defendant in the following particulars:
1. Said defendant failed to operate his automobile in such a manner as to have the same under control.
2. The defendant failed to reduce the speed of his automobile to a reasonable and proper rate as he approached the decedent, Nagel.
3. That the defendant failed to drive his automobile upon the right hand or east half of the traveled portion of the highway as he approached the point where he struck Nagel.
4. In striking Nagel with his automobile while the decedent was upon the west half of the traveled portion of the highway.
The plaintiff further alleged that Nagel, the decedent, kept a proper watchout and that he was free from negligence that contributed to his injuries and his death. Thereafter the plaintiff filed an amendment to his petition which in substance alleged that as the defendant, John Bretthauer, approached the place of the accident he saw the decedent walking on the west side of said highway and approaching the defendant; that as the defendant saw the decedent so approaching, the defendant had sufficient time and a fair chance to have avoided the accident by the exercise of reasonable care; that after the defendant saw the decedent upon the highway he had sufficient time and a fair chance to avoid said accident by driving his automobile to the right-hand side or the east portion of said highway.
The defendant filed an answer, which by stipulation was made applicable to the amendment to the petition, and in which answer the defendant denied " each and every allegation contained in the plaintiff's petition."
At the close of the plaintiff's testimony the defendant moved for a directed verdict on the ground that the plaintiff had failed to prove negligence on the part of the defendant; that plaintiff had failed to show freedom from contributory negligence on the part of the decedent, and that the " last clear chance" doctrine did not apply.
This original motion was overruled by the court and after the jury had been recalled for further proceedings in connection with the case, counsel for the defendant then announced that they rested their case. The defendant then renewed his motion for a directed verdict upon the same grounds as stated and incorporated in his original motion. This last motion was sustained by the court. Thereafter the court entered a judgment upon the verdict as returned under the direction of the court, and dismissed plaintiff's action with prejudice, and at plaintiff's costs. Plaintiff has appealed from this judgment as entered by the trial court. A brief summary of the evidence is necessary in order to set forth the record that was before the court and upon which it based its action.
The car driven by the defendant was traveling north, and was proceeding in the opposite direction to that in which the decedent, Nagel, was walking. There was testimony of two Iowa Highway Safety Patrolmen and the Sheriff of Monona County Iowa, that showed there were footprint marks visible for some distance leading up to the place of the accident. These footprints were about 2 feet in from the right-hand side of the road and on the west side. The roadway at the point where the decedent was struck was 24 feet wide. The investigation made by these peace...
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