Noland v. Kyar

• Decision Date: 18 June 1940
• Docket Number: 45267.
• Citation: 292 N.W. 810,228 Iowa 1006
• Parties: NOLAND v. KYAR.
• Court: Iowa Supreme Court

292 N.W. 810

228 Iowa 1006

NOLAND v. KYAR.

No. 45267.

Supreme Court of Iowa.

June 18, 1940

Appeal from District Court, Polk County; Russell Jordan, Judge.

Action for personal injuries alleged to have been caused by the negligence of defendant in driving his automobile. The plaintiff appealed from a judgment for defendant on a verdict by the jury.

Affirmed.

Ralph N. Lynch, of Des Moines, for appellant.

Bradshaw, Fowler, Proctor & Fairgrave, of Des Moines, for appellee.

BLISS Justice.

Plaintiff was born on May 25, 1927. The injury complained of occurred on Frederick Hubbell Boulevard in Des Moines, at about 4:15 o'clock in the afternoon of December 2, 1938. This highway extends in a northeasterly and southwesterly direction. It has a paved surface, approximately eighteen feet wide between the curbs, with earth shoulders, about six feet wide on each side. The plaintiff and his nine year old brother were returning home from the school which they attended on the easterly side of this highway. They had been walking northward on a sidewalk along the easterly side of the street, when their boyish curiosity took them across the pavement to its west side to look at a dead cat. They then proceeded northward for a distance on the west shoulder. The boulevard is intersected by Guthrie street and 3,003 feet further south, by Easton Boulevard. There are no intervening intersections and no buildings between the two intersections. There was motor traffic passing both ways as the boys walked along the west shoulder, and they stopped to wait for a break in the traffic to permit them to cross the pavement to the east side. There was quite a line of cars coming from the south. The plaintiff was in grade 5-A in school and had fair marks in his school work. He had been a member of the school patrol.

The defendant is a married man, a few years past forty, engaged in electrical work, with four children. He was alone in his two-door Ford touring car, and was traveling southwest close to the west curb. The surface of the ground is level for some distance north and south of Guthrie street and there was nothing intervening to obstruct the vision of either party. The collision occurred about 219 feet south of Guthrie street. Defendant first saw the boys when he was about 435 feet away. He testified that they were then playing and scuffling along the west shoulder. There was evidence that he was traveling from 30 to 40 miles an hour when he first saw the boys, and while he did not look at his speedometer, he thought he had slowed the speed of the car to 20 or 25 miles when the collision occurred. He testified: " I gradually slowed up and was not going very fast. I wondered if those boys were going to stay over where they belonged. They looked plenty far enough away from the curb. Just as I was right close to them, one of them pushed right out in front of me just so quick I don't know how it all happened. Of course, I hit him, I could not stop, he was too close to me. In my judgment the right front part of my car struck Russell as the right front headlight lens was broken. I stopped my car after the accident and got out and went around and picked up the boy. He was lying underneath the rear bumper between the rear wheels. I took him to the Lutheran Hospital." His car was traveling about a foot or eighteen inches from the west curb, and the boy was barely on the pavement when he struck him. Another motorist going northeast and close to the place of collision testified that: " The plaintiff seemed to tag the other boy. He just kind of hit him and then run. He ran out at about a 45 degree angle from where he was standing in front of the car, with his back partly to the car. He didn't anymore than get there until the car hit him. * * * Kyar was going somewhere near 20-25 miles an hour." Another motorist at the spot testified: " I saw the boys on the west side of Hubbell Boulevard before the accident. They were playing, tagging each other on the west side of the street. The car was coming slow. He ran right out in front of the car just about the time the car got right even with him. He just threw himself right out in front of it. The car stopped. I stopped. The little boy was lying right back of the left hind wheel after the accident."

The plaintiff's version and that of his brother varied little from the foregoing. Neither saw the defendant's car. Plaintiff took a step or two facing southeast with his back rather toward the defendant and was struck. They denied they were playing tag. We have set out substantially all of the testimony as to how the collision took place. Defendant's motion for a directed verdict was overruled, as was plaintiff's motion for new trial.

The court, among others, gave the following instructions:

" Instruction V. ‘ You are instructed that the mere fact that an accident happened and that plaintiff sustained injuries and damages is not in itself sufficient to show that the defendant was negligent. Neither does the law presume negligence on the part of the defendant from the mere happening of an accident. The burden is upon the plaintiff to establish that the defendant was guilty of negligence in one or more of the particulars charged in the plaintiff's petition and set out in the foregoing statement of issues and unless the plaintiff has established such negligence on the part of said defendant by a preponderance of the evidence your verdict will be for the defendant." ’

" Instruction VIII. ‘ It is the law of this State that every driver of a motor vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway

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