Parrack v. McGaffey

• Decision Date: 12 December 1933
• Docket Number: No. 42035.,42035.
• Citation: 217 Iowa 368,251 N.W. 871
• Parties: PARRACK et al. v. McGAFFEY.
• Court: Iowa Supreme Court

217 Iowa 368

251 N.W. 871

PARRACK et al.

v.McGAFFEY.

No. 42035.

Supreme Court of Iowa.

Dec. 12, 1933.

Appeal from Municipal Court of Des Moines; Don G. Allen, Judge.

This is an action at law for damages resulting from an automobile collision between plaintiff and defendant. A counterclaim for damages was also filed by defendant against plaintiff. There was a verdict and judgment for plaintiff in the sum of $250, from which defendant appeals.

Reversed.

H. W. Byers and Putnam, Putnam, Langdon & Fillmore, all of Des Moines, for appellant.

E. D. Marshall and R. E. Hanke, both of Des Moines, for appellees.

KINTZINGER, Justice.

The collision in question happened in the afternoon of April 8, 1932, at the intersection of Second street and University avenue in the city of Des Moines. It was a bright clear day, and both drivers had a clear view of each other. University avenue runs east and west, and Second street north and south, forming a “T” at the intersection. There is a steep grade on University avenue from the west toward the intersection at which the collision happened. University avenue is about 40 feet wide and Second street about 25. Plaintiff was traveling westward on the north side of University avenue approaching Second street, and, upon reaching the intersection, she started to turn around the center of the intersection to drive into Second street. The defendant was driving east on the south side of University avenue. The plaintiff was traveling over 20 miles an hour, and, according to plaintiff's evidence, the defendant was traveling 40 miles an hour. Plaintiff did not slacken her speed while approaching the intersection, and on makin the turn for Second street she gave her car more gas and increased its speed. As plaintiff approached the intersection, and while making the turn, she, at all times, saw the defendant's car approaching the intersection at a high rate of speed.

Before she entered Second street, and while still on University avenue, after making the turn, the defendant's car collided with plaintiff's car and knocked it over against the curb on the southeast corner of the intersection. At the close of all the testimony, defendant moved for a directed verdict on the grounds, among others, that plaintiff failed to establish defendant's negligence, and that she failed to establish her own freedomfrom contributory negligence. The motion was overruled, and verdict and judgment entered for plaintiff.

[1][2] I. It is claimed that the court erred in failing to sustain defendant's motion for a directed verdict, because the evidence failed to establish defendant's negligence as alleged.

It is the settled rule of law in this state that, where there is a conflict in the evidence as to whether or not a defendant is guilty of any of the acts of negligence alleged, it becomes a question for the jury. The allegations of negligence submitted to the jury were: (1) That at the time of the accident he drove his car at an excessive and dangerous rate of speed; (2) that he did not have his car under proper control at the time and place of the accident; and (3) in failing to keep a proper lookout for others using the highway.

Plaintiff testified that, as she entered University avenue about a half block east of Second street, she saw defendant's car approaching about two blocks west of Second street; that, when she started to turn left to cross into Second street, she saw defendant's car coming down the hill towards Second street at a speed of 40 miles an hour; and that he increased his speed when plaintiff was turning. Plaintiff was on the inside lane preparing to turn into Second street, that she was making the turn before defendant reached the intersection, and that her car was on the south side of University avenue when the collision occurred. She testified that he had not slackened his speed.

From this evidence the jury might find that he was driving down the hill at a high rate of speed, that he did not have his car under control, or that he was not keeping a proper lookout. This testimony was denied by defendant, but it clearly raised a sufficient conflict in the evidence to make the question of defendant's negligence one for the jury.

[3][4] II. Error is also assigned because of the court's failure to hold, as a matter of law, that plaintiff failed to establish her freedom from contributory negligence. The evidence shows without despute that plaintiff had a clear view of University avenue and saw defendant's car approaching Second street when it was more than two blocks away. She testified that, as defendant's car was coming down the hill on University avenue, approaching Second street, it was traveling at about 40 miles an hour. She further testified that the defendant failed to slacken the speed of his car, but increased it. Plaintiff testified that defendant was 25 feet away as she was driving south into Second street. She testified that she did not slacken the speed of her car, but, on the contrary, accelerated the speed by stepping on the gas. By doing this she was attempting to cross ahead of a fast-moving car approaching the intersection. She testified: “I saw the car coming down the hill west of Second Street, and when I was somewheres between Second Street and Bluff Street, which is about one-half block east of Second Street, I decided to turn. I was going about 20 miles an hour and I did not slow down any before I made the turn into Second Street. As the other car came down the hill I went faster. I had my eye on him as he was driving down the street”; that she increased the speed of her car to get across and tried to go faster.

Plaintiff knew that defendant was approaching at a high rate of speed, and did nothing whatever to protect herself and others against the danger of a collision which must have been apparent to her by crossing over the south side of the street.

Under the law of this state, the operator of a motor vehicle shall, before stopping, turning, or changing the course of such vehicle, first see that there is sufficient space to make such movement in safety, etc. Code § 5032; Dillon v. Diamond Products Co., 215 Iowa, 440, 245 N. W. 725. The court embodied the substance of this statute in instruction No. 10. Therein the court said: “That it is the law of this State that the operator of a motor vehicle shall before turning or changing the course of said vehicle first see that there is sufficient space to make such movement in safety. It is for you to say from all of the evidence in this case whether or not Mrs. Parrack at the time of the accident first saw that she could make the turn from University Avenue south on to Second Street in safety. If you find from all of the evidence that she failed to first look to see that she could make such movement in safety, and you further find that such failure on her part contributed...