Orr v. Hart

• Decision Date: 11 December 1934
• Docket Number: No. 42559.,42559.
• Parties: ORR v. HART.
• Court: Iowa Supreme Court

219 Iowa 408

258 N.W. 84

ORR

v.HART.^a1

No. 42559.

Supreme Court of Iowa.

Dec. 11, 1934.

Appeal from District Court, Linn County; H. C. Ring, Judge.

This is an action for damages for personal injuries sustained by the plaintiff as a pedestrian by reason of a collision with an automobile driven by, and belonging to, the defendant. The injuries sustained were very serious, and the amount of damages allowed by the jury is not questioned on the appeal. The accident happened at about 9 o'clock a. m. on July 30, 1932. The place thereof was the intersection of two streets in the city of Cedar Rapids. These two streets are known as Fourth street and Second avenue. They intersect substantially at right angles. Second avenue extends east and west, and Fourth street extends north and south. Fourth street is 80 feet wide and is occupied by five railway tracks running parallel therewith, and is not generally used for other than railway traffic, except that pedestrian travel is provided for on either side thereof. Second avenue running east and west, is 51 feet wide on the easterly side of Fourth street and 48 feet wide on the westerly side. The accident happened on the westerly side of Fourth street and at about the center of Second avenue. The plaintiff was walking south on the west side of Fourth street in the regular line of pedestrian travel. The defendant was driving his automobile westerly on Second avenue. Neither party saw the other before the accident. It is the contention of the plaintiff that the defendant negligently drove his automobile at high speed so close to the plaintiff as to “side-swipe” him and cast him to the pavement. On the other hand, it is the contention of the defendant, that the plaintiff negligently walked up to, and against, the defendant's automobile, while he drove across the intersection, and that his injuries were the result of his own negligence. The principal issue made by the pleadings was, and is, whether the plaintiff was guilty of contributory negligence, and whether he was so guilty as a matter of law. Many errors alleged to have been committed in the course of the trial are assigned and presented for our consideration.

The trial court submitted the case to the jury, and the jury rendered a verdict for the plaintiff upon which judgment was entered. The defendant appeals.

Affirmed.Grimm, Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellant.

Donnelly, Lynch, Anderson & Lynch, of Cedar Rapids, for appellee.

EVANS, Justice.

There is much conflict in the evidence. In the statement of the facts for the purpose of considering the question of contributory negligence, we shall state them in the light most favorable to the plaintiff.

The plaintiff was an elderly man, 66 years of age. He was walking south on Fourth street and on the west side thereof. In the first instance he was intending to turn east along the north side of Second avenue when he should come to it. When he arrived, he observed that a switch engine with a string of cars was moving south on Fourth street and was moving across the pedestrian line of travel on the north side of Second avenue. The flagman was there with his signals. He put up his stop signal and sounded his whistle for the stoppage of all east-west vehicular traffic upon the intersection. This was done to protect the right of way to the use of the switch engine. Both parties to this action were familiar with the duties of the flagman in that regard. After the signal by the flagman, the plaintiff pursued his way on south along the west line of Fourth street as he had a right to do. At or about the same time the defendant, driving his automobile, approached the intersection from the east and driving along Second avenue. He was already barred by the flagman's signals from crossing the intersection. The switch engine and its string of cars occupied the middle railway track and was crossing the intersection from north to south. The defendant saw the engine and its cars. His line of travel westerly on Second avenue was already obstructed by the train. He interpreted the signals of the flagman as giving him consent to proceed. He “veered” to the south from his line of travel so as to cross the middle railway track on the left side of Second avenue. In so doing, he passed within 6 or 8 feet in front of the moving engine. After crossing the middle railway track, he “veered” again to the north. He was driving from twenty-five to thirty miles an hour. In turning northward he moved in the direction of the plaintiff, who at the moment of the collision had arrived at a point near the middle of Second avenue. The front end of his car passed the plaintiff within a distance of about one foot. The door handle of his car caught the plaintiff and brushed him down.

The excuse, if any, for the plaintiff's failure to see the approaching car, is that he was looking westerly for cars from that direction. He was apparently protected by the switch engine and its cars, as against motor traffic from the east, and protected also by the further fact that he was near the center of Second avenue and that motor traffic from the east, if any, would normally pass such point on the north side. The excuse for defendant's failure to see the plaintiff is suggested indirectly. The argument for him is that he was in fact in his proper place upon Second avenue and that the plaintiff suddenly walked up against his automobile. It is not claimed that he passed on the north side of the plaintiff, nor that he passed on the north side of the avenue. Neither is it claimed that the plaintiff was running. The defendant's wife was riding with him. She testified that the front end of the automobile passed the plaintiff within a distance of about one foot. At the time of the accident, there was no other vehicular traffic upon the intersection except the switch train and the defendant's automobile. Nor was there any object to obscure the vision, except the shanty of the flagman.

[1] The stress of appellant's argument is largely laid upon the proposition that the plaintiff was guilty of contributory negligence as a matter of law. At the close of the evidence defendant's motion for a directed verdict was presented to the court and was by the court overruled. Such contention is renewed here.

The defendant's approach to the question in his argument here puts the defendant in the passive attitude of occupancy of the street in proper manner, time, and place, and contends that the plaintiff actively collided with him by walking up to, and against, his automobile. The picture disclosed by the record is not so complacent as the defendant would put it. The defendant was moving at the rate of twenty-five or thirty miles an hour, according to testimony for the plaintiff. According to the testimony for the defendant, he was moving at about half that rate. Either rate was far in excess of plaintiff's rate of motion. One second before the collision the defendant was 40 feet away. The plaintiff was in plain view. The defendant's wife saw him then. The defendant was “veering” from the southerly side toward the northerly side of the street. There was no reason apparent why the defendant should approach the plaintiff within a distance of one foot. The plaintiff was proceeding due south. The defendant had lost his course on the compass. He is described by the witnesses as “veering” to the south to get by the switch engine and “veering” back to the north, doubtless to regain his proper position on the avenue. Observing what happened in the last 40 feet of his travel, was the movement of the plaintiff an agression upon him? Or was he himself the aggressor? Upon this record we find it difficult to say that there is any evidence of contributory negligence on the plaintiff's part.

The defendant contends that plaintiff was negligent because he failed to look toward the intersection after he entered upon it. His evidence is that he looked just before he started across. He saw the switching train and the flagman and the shanty, nothing more. The course of the switch train was parallel to that of the plaintiff and operated as a protection to him. He had only 20 or 25 feet to go to reach the center of the street. He was at that time looking westerly. This was the only direction from which automobiles could properly come along the south half of the avenue. Upon the record we are clear that the defendant was not entitled to a directed verdict on the ground of contributory negligence.

[2] II. The plaintiff testified that before starting across Second avenue he looked over the intersection and observed no one thereon except the flagman and the approaching train. He did not thereafter look in that direction. He gave as a reason for not doing so the fact that he was relying upon the stop signals of the flagman. Appellant assigns error and contends that the evidence was inadmissible. In support of his contention, he cites Allen v. Des Moines Railway (Iowa) 253 N. W. 143, 145. The cited case does not support the appellant. In the Allen Case the motorman was the defendant's witness. He was asked this question: “Was there anything you could have done which would have stopped that car quicker than it was stopped at that time?” The plaintiff's objection to the question was sustained. We sustained the ruling here on the ground largely that the question comprehended the whole case and was an invasion of the province of the jury. We have frequently held that, where the intent of a party is a material issue to be proved, it may be so proved by the testimony of the party himself.

[3][4] III. The defendant presented to the court, and requested the giving, of thirteen prepared instructions. The court on its own motion, prepared and gave twenty-four instructions. It refused the requested instructions. Error is assigned upon each refusal. Manifestly we cannot go into much detail...