Orth v. Gregg

• Decision Date: 26 September 1933
• Docket Number: No. 41830.,41830.
• Citation: 217 Iowa 516,250 N.W. 113
• Parties: ORTH v. GREGG.
• Court: Iowa Supreme Court

217 Iowa 516

250 N.W. 113

ORTH

v.GREGG.

No. 41830.

Supreme Court of Iowa.

Sept. 26, 1933.

Appeal from District Court, Woodbury County; Robert H. Munger, Judge.

Plaintiff, while in the traveled part of a street in Sioux City, was run down by an automobile driven by defendant. He brought this action to recover damages for resulting injuries. The jury returned a verdict in his favor, and from judgment thereon defendant prosecutes this appeal.

Affirmed.H. W. Brackney and D. W. Burington, both of Sioux City, for appellant.

Gleysteen, Purdy & Harper, of Sioux City, for appellee.

CLAUSSEN, Justice.

The record indicates that West Seventh street, in Sioux City, runs in rather a northwesterly direction. As a matter of convenience in keeping directions in mind it will be treated in this opinion as an east and west street. The street is an important artery of traffic, and is used by many vehicles. On the evening of February 18, 1930, plaintiff parked his automobile on the north side of this street near an alley between Sioux street and Market street. After parking his car, he alighted, went to the alley, and then started southerly across the street. In his journey across the street, he was struck by a car driven westerly by defendant. The accident occurred at about 6:30 p. m. It was growing dusk at the time. Visibility was still good, however, for the defendant says that he could have seen a person at a distance of two blocks. The street on which the accident occurred is a paved street, 58 feet in width from curb to curb. In the center of the street are double street car tracks. The distance from the north rail of the north track to the north curb is 22 feet. The accident took place within a business district, as the term is used in the statute governing the speed of motor vehicles.

The city then had on its books the following ordinance: “No pedestrian shall cross a public street of this city except at a crossing and at right angles with said street and at the end of the block.”

Upon the trial the defendant moved for a directed verdict and requested certain instructions. The motion for a directed verdict was overruled and the requested instructions were denied. The jury returned a verdict for plaintiff.

Through the motion for a directed verdict, two questions were raised which the record brings before this court. It is contended that plaintiff was guilty of contributory negligence, and that negligence was not shown on the part of the defendant.

The evidence is in conflict. For the purpose of considering the questions raised by the motion, the facts will be stated most favorably to plaintiff. From the evidence, the jury could find that, when plaintiff started to cross the street, defendant was a block away; that there was nothing about the manner in which the defendant was driving the car that would draw attention to its speed; that plaintiff walked on to the street at an ordinary gait; that, when on the traveled part of the street between the curb and the north track, plaintiff again looked to the east and observed defendant's car about a half a block away; that, when plaintiff reached the center of the north car tracks, he paused to permit an east-bound car to pass; that visibility was good; that plaintiff was struck by defendant's car while on the north car tracks; that defendant was driving at from 25 to 30 miles per hour; that defendant did not sound the horn of his car; and that the east-bound car was the only car, other than defendant's, in the immediate vicinity when the accident took place.

The power of the city to pass the ordinance above quoted is not challenged. The case was tried before the opinion was filed in the case of Kisling v. Thierman, 214 Iowa, 911, 243 N. W. 552, and was tried by court and counsel, and is argued by appellant in this court, upon the theory that a violation of the ordinance by plaintiff and a violation of the speed laws was prima facie negligence. The question whether such violations were negligence, in and of themselves, has not been preserved by proper exceptions, and is not before the court. Upon neither of these matters do we express an opinion.

Appellant's thought is that, in view of the ordinance, reasonable care forbade plaintiff going upon this busy street in the middle of a block, and that in failing to give heed to defendant's car and in not eluding it on the street plaintiff failed to exercise reasonable care for his own safety. The record portrays the street as being relatively deserted at the time of the accident, so far as vehicular traffic is concerned. It cannot be said as a matter of law that plaintiff was guilty of contributory negligence in walking out into the street. Concerning the other angle of appellant's contention, it will be well to call attention at the outset to the fact that the evidence does not indicate that plaintiff stepped from a place of concealment into the pathway of defendant's car, except the defendant's statement that he did not see plaintiff until the instant of the collision. The cars on the north side of the street were parked parallel with the curb. It is 22 feet from the north curb to the north rail of the north track. Allowing for the possibility that plaintiff was hidden from view by parked cars as he started to cross the street, it is still obvious that he was in plain sight on the street while he walked the remaining distance to the center of the north track-some 16 feet. As he stood in the center of the track, an unobstructed stretch of pavement was to the north of him of sufficient width to accommodate two lines of traffic. The defendant had ample opportunity to discover plaintiff on the street and plenty of room to avoid running him down.

[1][2][3][4] Plaintiff stated that, before he reached the tracks, he looked to the east and...