Pixler v. Clemens
| Citation | 191 N.W. 375,195 Iowa 529 |
| Decision Date | 16 January 1923 |
| Docket Number | 34575 |
| Parties | ALBERT PIXLER, Appellant, v. ALBERT CLEMENS, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 13, 1923.
Appeal from Clayton District Court.--W. J. SPRINGER, Judge.
ACTION to recover damages for personal injuries resulting from the alleged negligence of the defendant in the operation of an automobile. Upon the conclusion of all the evidence the trial court directed a verdict for defendant and entered judgment for costs against the plaintiff who appeals.
Reversed.
W. L Eichendorf and William S. Hart, for appellant.
M. X Geske and Stipp, Perry, Bannister & Starzinger, for appellee.
DE GRAFF, J.
Plaintiff for cause of action alleges that on the evening of May 4, 1919 he was run over by an automobile negligently driven by the defendant on the North Iowa Pike road leading into the city of McGregor and that he was free from contributory negligence.
The negligence charged is as follows: "Defendant was operating said automobile at a high and dangerous rate of speed on a down grade, without having said automobile under control, and without controlling or managing same, and without giving any warning or signals, and operating said automobile in a willful, unlawful, reckless, negligent, and careless manner, and keeping no lookout for and paying no attention to persons who might be upon said highway in front of said automobile; and had said defendant looked or paid proper attention to whet he was doing, and had his automobile under control, he could easily have seen the said Albert Pixler and avoided running down, striking, and running over him; and the injury to said Albert Pixler and the damages resulting therefrom was due solely and entirely to the unlawful, reckless, careless, and negligent operation and mismanagement of said automobile by the defendant in the driving and control thereof."
The defendant for answer admits that the plaintiff sustained an accident by coming in contact with an automobile driven by the defendant and that as a result thereof plaintiff was seriously injured, but defendant avers that he was driving the automobile in a careful and prudent manner and that the accident was caused by the inadvertence of the plaintiff in suddenly and unexpectedly darting from the road into the left-hand side of the automobile and denies generally the allegations of plaintiff's petition not expressly admitted or qualified.
At the conclusion of all the evidence the defendant moved for a directed verdict which motion was sustained by the court. Thereafter plaintiff filed his motion for a new trial which was overruled.
This appeal involves but one question. Was the court legally justified on the pleadings and the proof in sustaining defendant's motion for a directed verdict?
The accident happened about dusk on a country road leading into the city of McGregor from the west, which highway constitutes an extension of Main Street. Plaintiff was a boy not quite 15 years of age at the time of the accident, and on the evening in question had been playing with other children a short distance from his home, which is quite close to the traveled portion of the street or thoroughfare. The auto driven by the defendant was traveling east and was occupied by the defendant and his wife and another woman by the name of Hoffman.
That the lights on the car were burning is not disputed, but as to their brightness the evidence is in conflict; that the defendant did not blow his horn is undisputed. These phases of the case, however, do not provoke the real difficulty in determining the correctness of the ruling of the trial court. Failure to give a warning signal does not constitute negligence when there is no apparent necessity for such warning and the obligation to give such signal is not imposed under the circumstances by statute. This, however, might present a jury question under all the circumstances of the case. No one testifies that the boy was ever in front of the automobile in question, but it is circumstantially proven that the boy was run over by the automobile. We recognize the rule that the mere fact that an accident happened about the time and place alleged causing injury to the plaintiff is not enough to make out a case for the jury.
Appellee further contends that there is no evidence of excessive speed which sustains any causal relationship to the accident. There can be little quarrel with this contention. The only testimony that would tend to prove negligence through unlawful speed is the statement of witness Rhinehart that he thought the automobile was traveling 30 miles per hour when it passed him on the road about 600 feet away from the place of the accident. It is shown that the occupants of the car saw the groups of children on the roadway ahead of them along the northerly or left-hand edge of the street as the car was driven east prior to the accident. Plaintiff's testimony also shows that the boy just immediately prior to the accident was standing near the north edge of the roadway about two feet into the street from the grass line at the edge of the traveled portion of the street. He was facing eastward down the road...
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