Paschka v. Carsten

• Decision Date: 05 May 1942
• Docket Number: 45831.
• Citation: 3 N.W.2d 542,231 Iowa 1185
• Parties: PASCHKA v. CARSTEN et al.
• Court: Iowa Supreme Court

3 N.W.2d 542

231 Iowa 1185

PASCHKA v. CARSTEN et al.

No. 45831.

Supreme Court of Iowa

May 5, 1942

Senneff & Duncan and Breese & Cornwell all of Mason City, for appellants.

Murray H. Finley, of Mason City, for appellee.

WENNERSTRUM Justice.

Plaintiff, a minor six years of age at the time of the injuries sustained by him, which occasioned this litigation, claimed damages against the defendants, Helga Carsten and F. C. Hintzen, the driver and owner respectively of an automobile which the plaintiff claimed was negligently operated. The defendants denied any liability for the injuries received. Upon trial a verdict was returned for the plaintiff and judgment was thereafter entered. Defendants filed a motion for a new trial and exceptions to the instructions, which were overruled. The defendants have appealed.

As a basis for our further comments relative to this case a summary of the facts as disclosed by the evidence is necessary.

On July 4 1939, Helga Carsten was driving an automobile southeasterly on paved highway 65 outside the city limits of Mason City Iowa. The car was owned by F. C. Hintzen. At the particular time of the injuries to the plaintiff, it was about 7:30 P M., the paving was dry and it was still daylight. The driver was accompanied at that time by her two children, age 5 and 6, who were riding in the front seat with her. Shortly before she reached the point on the highway where plaintiff was injured the rate of speed of the automobile was approximately 25 miles per hour. She first saw the plaintiff as she was driving southeasterly and when about a block away. At that time the plaintiff and his small sister, Hallie Lee Paschka, were halfway between a fence which runs along the highway and the southwest side of the highway proper. As the defendant, Helga Carsten, progressed further in her driving of the car the plaintiff started toward the payement and Mrs. Carsten then slowed down to about twenty miles per hour, and according to her testimony, honked her horn. As to what then may have happened is disclosed by the cross-examination of Mrs. Carsten. She testified concerning the facts as they developed and as she observed them, as follows:

"The boy came from halfway between the fence and the west edge of the pavement toward the pavement and then stopped about two or three feet from the edge of the highway there. I was then getting close to that cinder driveway, and had slowed down. I assumed that having stopped there, he wouldn't go on any farther toward the paving until after I had passed. I saw him look at my car when he stopped there and before he stopped. I didn't think it necessary to turn out as the boy was standing still. At the time I went by, the boy was about a foot and a half or two feet from the right or west curb of the pavement. The boy was standing still and looking at the car when he was two or three feet from the pavement, so I drove in a straight line at a speed of not more than twenty miles an hour. I don't know exactly how many feet it takes to stop the car going twenty miles per hour, but with good brakes and a dry road, you can stop the car in a very short distance at that speed.

"I sounded the horn when the boy stopped, and I was a little less than a block away, and I also honked the horn as I got closer. I honked it more than once. I sounded the horn twice on each of two occasions as I approached the boy.

* * * * *

"After the front part of my car passed the boy, I didn't look toward him as he had been standing there off the pavement looking at me as I came closer to him and was standing there as I passed by him in the front seat of the car. I looked at the boy until the front part of the car was right about even with or just past the boy. I know that the front part of the car did not hit the boy as I saw the boy on the side of the pavement as the front part of the car passed him. I thought it was safe to pass the boy as I did while he was standing there looking toward the car. I was slowing up as I was going toward him, but he saw the car coming and looked at it and stood still there and there wasn't any reason for me to think that he would come nearer the pavement. Naturally, the boy would see the car and couldn't help seeing it when he looked up the highway and right at it and stopped and continued to look at the car after he had stopped. I don't understand how there would be any way that he could help but see it, and I know that he did from his actions because he looked up the highway right at it and then stopped and then continued to look right at it so I feel sure in saying that I know he saw it.

"In slowing down I took my foot off the accelerator and put it on the brake, but I didn't keep my foot on the brake as I saw the boy looking my way. As I passed the boy I didn't have my foot either on the brake or the foot feed. I didn't go over two car lengths after I heard his contact with the car. At that time the roads were dry. I am certain that it was some portion of the rear part of the car with which the boy came in contact, although I didn't see him come in contact with the car. I had the car under proper control. There was no car approaching at the time of the accident within about a block and a half. * * *."

It is the defendant's contention that the plaintiff ran into the side of the car and that by reason of that fact there was no negligence on the part of the defendant driver.

It is the claim of the plaintiff, as evidenced by proceedings at the trial, that the defendant driver either negligently operated the car as she passed the plaintiff, or that the plaintiff was struck by the front of the defendant's car. Hallie Lee Paschka, a sister of the plaintiff, and ten years of age at the time of the trial, gave testimony which somewhat bore out the contention of the plaintiff that the child was struck by the front of the car. In her original direct examination she testified in substance as follows: "Duane was standing close to the pavement when he was hit. I think he was standing with one foot on the pavement and one foot on the gravel or shoulder. I don't remember which foot was on the gravel. It was on the little part that slopes up from the pavement that cars run on or the part that kind of slants up from the flat part." In answer to an inquiry of counsel for the plaintiff regarding what she saw at the time that her brother was knocked down, this witness then answered: "I wasn't looking right at him then and I wasn't paying any attention to him."

She further testified that she saw the car coming that knocked him down and that she didn't hear the car honk its horn. She further stated at that time that she didn't see the car strike Duane.

Several questions were asked of the witness following the examination just quoted but to each of them the witness gave no answer. At that time a recess was taken at the suggestion of the court.

After the recess the witness was interrogated regarding what she saw when Duane was standing with one foot on the shoulder and the other one on the gravel and she then stated that she turned around and looked back at him and saw that he was struck by the front end of the car. She further testified that after she had looked away the first time and looked back she then saw her brother hit by the front end of the car.

On cross-examination she testified that she was ten years of age and at the time of the accident she was eight years of age. She again testified "I was looking the other way and then I turned around and saw he was hit by the front end of the car, that he was hit by the front fender." Several other questions were asked on cross-examination by counsel for defendants but to these the witness gave no answer and cried while on the witness stand.

There was a motion made on behalf of the defendants to strike the testimony of this last witness as being incompetent and improper in that it was shown that the witness had no real recollection of anything which took place and further because of her immaturity, and the length of time since the transaction of the affairs concerning which she was testifying, that she was unable to...