O'Neil v. Redfield

• Decision Date: 22 January 1913
• Citation: 139 N.W. 555,158 Iowa 246
• Parties: WILLIAM O'NEIL, by his next friend DENNIS O'NEIL, Appellant, v. T. M. REDFIELD, Appellee
• Court: Iowa Supreme Court

139 N.W. 555

158 Iowa 246

WILLIAM O'NEIL, by his next friend DENNIS O'NEIL, Appellant, v. T. M. REDFIELD, Appellee

Supreme Court of Iowa, Des Moines

January 22, 1913

Appeal from Dallas District Court.--HON. J. H. APPLEGATE, Judge.

ACTION at law to recover damages for personal injury. There was a verdict and judgment for defendant, and plaintiff appeals. Reversed and Remanded.

Reversed.

Ryan & Ryan, for appellant.

White & Clarke, for appellee.

OPINION

WEAVER, C. J.

The plaintiff, a child of five years of age, suing by his next friend, alleges that while upon a public street in the city of Des Moines he was struck and injured by a passing automobile, operated by the defendant. He charges that the accident was occasioned by the negligence of the defendant in driving his car at a speed in excess of 10 miles an hour, in violation of law and at an unreasonably high speed and with reckless disregard of the safety of persons lawfully upon the public highway. The defendant denies all the allegations of the petition. The evidence shows without substantial dispute that defendant with two other persons was driving his car along a street in the city of Des Moines at a point where the lots on either hand are quite generally occupied by residences; that plaintiff, who had been playing in or near the street, undertook to cross the roadway some distance in front of the car. The defendant, when at a distance which he estimates at one hundred and fifty feet saw the boy at the sidewalk, and on approaching nearer, saw him start toward the other side. Reaching the middle of the street, the boy hesitated for an instant, and defendant instead of attempting to pass behind him, increased the speed of his car with the purpose of passing ahead of him. In trying to avoid the imminent collision defendant swung the car so far out of the road as to strike the curb and mount the parking. It is the theory of the plaintiff that the car struck him at about the same time it hit the curb, knocking him down, breaking his collarbone, and inflicting severe wounds upon his face. The defendant denies that the car struck the plaintiff, and suggests the thought that the injuries complained of were the result of a fall upon the pavement.

I. So far as the preponderance of witnesses is concerned, it is largely with the plaintiff, to the effect that the car was being operated at a speed in excess of ten miles an hour, and that in its passage or attempted passage it came in collision with the boy; but the conflict in the testimony was doubtless sufficient to take that question to the jury, and, were this the only matter to be considered on appeal, the judgment would have to be affirmed. But other errors are assigned which require our attention.

As a witness in his own behalf defendant testified that his car was in bad order, and not being driven at high speed. He asserted that on seeing the boy in the road he first slowed his speed to less than five miles an hour, and only increased it when that seemed the most prudent thing to do. He further swore that the car did not strike the plaintiff. On cross-examination he was confronted with the following letter, which he admitted was written by him to the parents of the injured boy soon after the accident:

Redfield, Ia., Nov. 8th, 1909. Dear Mr. and Mrs. O'Neil: I feel so distressed over the painful accident to your dear little boy that I have been unable to rest until I hear how the little man is getting along. The doctors assured me before I left that he was not seriously hurt and I do pray God it may prove correct. I am very thankful the front of the auto did not strike him or he would surely have been killed. One of the friends with me, Mr. Winter, who was thrown out, was painfully hurt in the side. It is a wonder he was not more seriously injured as he weighs over two hundred lbs. My auto is badly damaged. I will have to buy a new axle and three new tires besides the repair on bent irons, etc. I consider the accident wholly unavoidable under the circumstances and feel that I did all in my power to avert it. I am anxious for you to write to me and inform me of his condition. And as you have been to some expense for Drs. etc., I will take pleasure in having you send me the Dr. bill. Tell 'Billy' when I come down I will come and see him and bring him something nice. Hoping this will find the boy much improved, I remain, Yours sincerely, T. M. Redfield.

This letter being offered in evidence by the plaintiff, it was excluded upon the defendant's objection as being incompetent, irrelevant, and immaterial. Plaintiff thereupon offered separately the parts of the letter in evidence in which defendant write...