Needy v. Littlejohn

Decision Date17 March 1908
Citation115 N.W. 483,137 Iowa 704
PartiesNEEDY v. LITTLEJOHN.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Buchanan County; F. C. Platt, Judge.

Action at law to recover damages for injuries sustained by plaintiff due, as is alleged, to defendant's negligence in operating an automobile. Trial to a jury; verdict and judgment for plaintiff, and defendant appeals. Reversed.Cook & Cook, for appellant.

Springer & Smith and E. E. Hasner, for appellee.

DEEMER, J.

Plaintiff claims that while driving upon a highway, the traveled part of which was not more than 21 feet in width, with a single horse and buggy, he met defendant who was driving an automobile; that defendant approached him on the left or wrong side of the highway, was going at an unusual and dangerous rate of speed, and that, in passing, his (plaintiff's) horse took fright, jumped from the traveled portion of the track down a rather steep embankment at the side thereof, and caused the injuries of which he complains. Defendant denied all negligence on his part, and pleaded contributory negligence on the part of plaintiff. As the principal point made upon this appeal relates to the sufficiency of the testimony, we shall set out all of it which tends in any manner to show negligence. One witness testified that when he saw defendant's machine it was going at a good rate of speed, and that it did not slow down as it approached the plaintiff. Another said that she saw the auto and noticed no cessation of speed as it approached the plaintiff, but she also testified on cross-examination as follows: “The automobile was going away from me all the time, and I have noticed that it is more difficult to state whether there is any variation of the speed of a retreating train and of a retreating automobile. I would not be able to say absolutely whether the automobile slowed down or not.” Another witness testified as follows: “Q. State where you found the left wheel of the automobile to have run with reference to the traveled track? A. I think the left wheel was about the middle of the traveled road, as near as I could tell without taking any measurements.”

“Cross-examination: The accident happenpened when the automobile got opposite the buggy, as nearly as I could judge. When the automobile got opposite the buggy the horse and buggy went over into the ditch. The horse and buggy went over into the ditch about the same time as near as I can judge.”

Plaintiff gave the following version of the affair: “When first the machine turned towards me I pulled out to my side of the road about as close as I dared get. Q. How did that machine seem to be coming towards you? A. It seemed to be coming fast--extra fast. It was on the east side of the road and seemed to be coming direct to me. Q. What happened when the machine came to you? Did it change its speed in any manner that you observed? A. As the machine got direct to me, seemed to be in front of me, the two coming together, my horse whirled off, went over the embankment. Q. What happened to you and to the buggy and to the horse? A. The horse turned and went down the embankment and the buggy went over, and the buggy turned over and laid on its two right-hand wheels. The horse headed north with the one thill on its back and the other on its side. Mr. Truax and Mr. Netcott and I picked the buggy up, then investigated as to where the wheel tracks of the automobile were. Q. Where was the left wheel of the automobile with reference to the center of the traveled way? A. It was nearer the east side than it was to the west side. I was driving the horse and single buggy. I have driven the horse before, and had met automobiles before when I had been driving her single. I met automobiles a number of different times. I met one that morning right here on Main street. It ran across the bridge right behind me, and when I got on the other side of the bridge it went by me. The horse is an extra gentle animal. When I met the automobile I had my lines one in each hand, and had my whip in the right hand. When I had met automobiles before the animal seemed to be quiet, and I had passed them without difficulty. Q. As the automobile approached closely to you, it turned to the right of the road, Mr. Needy? A. No, sir. Q. It didn't turn out to the right on the road at all? A. Not that I saw. Q. Not that you saw; then it continued just the same on the road the whole distance down the road--is that correct? A. It continued on the east side of the half. Q. Yes, sir; and it continued just the same when it passed you as when you first saw it, and it continued the same all the way down the road coming to you from the time you first saw it that it was when it passed you on the east side of the road? A. Not exactly. Q. You mean it did not run in a straight line? A. No, sir. Q. But you mean that it kept the same general position on the east center of the road from the time you saw it turn south until the time it passed you? A. No, sir; not exactly that way. I mean that it come direct to me--come direct to me; then when it, just as my horse flew, it veered over a little to the right, but was not over half of the road. Q. Come to the left--come to you; it passed to the left of you, didn't it? A. Come right up against me. Q. Didn't touch you, did it? A. I don't know as it did, because the horse cleared herself away from there. Q. Where was your buggy on that turnpike; how near to the east edge of the turnpike was your buggy at the time that the automobile passed you? A. Right along the edge of the grass. Q. Right along the edge of the turnpike? A. Yes, sir; the east edge. Q. And the left wheel of that automobile passed you a foot and a half east of the center of the turnpike? A. Passed me? Q. That is where the automobile track was, was it not, at the place of the accident? A. I should think when the automobile went by me I was in the ditch. There is where I was.”

On cross-examination he testified as follows: “The automobile was on the east side more than it was in the center. It wasn't...

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