Powell v. Alitz

Decision Date05 April 1921
Docket Number33809
Citation182 N.W. 236,191 Iowa 233
PartiesRICHARD POWELL, Appellee, v. WILLIAM ALITZ, Appellant
CourtIowa Supreme Court

Appeal from Cerro Gordo District Court.--M. F. EDWARDS, Judge.

ACTION to recover damages for personal injuries to plaintiff by reason of a collision between his motor cycle and defendant's automobile. Trial to a jury, and verdict and judgment for plaintiff for $ 8,500. The defendant appeals.


D. W Telford, F. A. Ontjes, and D. H. Fitzpatrick, for appellant.

J. E Williams and Senneff, Bliss, Witwer & Senneff, for appellee.




Plaintiff was seriously injured. Two ribs were broken; his fingers were cut; 64 stitches were taken in his shoulder; his leg was broken, and, at the time of the trial, a year and a half after the injury, there was no union of the bones of his leg, which hung limp. It appears that, after the infection disappears, another operation will be necessary, and, if this is successful, his leg will be three inches short. The estimated expense of the operation to come is $ 1,000. The doctor's and hospital bills were large. The evidence tends to show that he suffered a great deal. He was a young man, 17 years of age, and, at the time of his injury, was receiving about $ 3.50 a day. He had been working in a cement plant, and for the Sugar Beet Company. Plaintiff alleged that, on October 15, 1917, while he was riding north on Federal Avenue, in Mason City, on his motor cycle, at a speed of about 15 miles per hour, and at a distance of about 3 to 5 feet from the curb on the east side of the pavement, without fault or negligence on his part, defendant negligently, while driving south on Federal Avenue, and while passing other vehicles, swung within a few feet of the east edge of the pavement, and negligently collided with the motor cycle driven by plaintiff, injuring him; that, at the time of said collision, defendant was driving recklessly, at a speed of about 35 miles per hour; that the headlights of his auto were not dimmed, and that the same blinded plaintiff; that defendant was on the wrong side of the street, and within 3 to 5 feet from the east curb.

Defendant answered in general denial, and alleged that plaintiff, without warning, negligently drove and operated his motor cycle at a dangerous rate of speed, and at a rate in excess of that permitted by the city ordinance, namely, in excess of 15 miles per hour; and that plaintiff, so operating his machine, ran into defendant's automobile; that plaintiff's negligence was the cause of or contributed directly to the accident and injury complained of by plaintiff.

Plaintiff was an experienced motor cyclist. The pavement at the point of the accident was 30 feet wide. Federal Avenue is one of the principal thoroughfares of the city.

Defendant's evidence tends to show that, as he came from the north with his Overland car, he passed another automobile on the road north of the city, and that, at the time of the accident, that automobile was behind defendant; that a Ford car was ahead of defendant, and ahead of the Ford were a sorrel horse and wagon, going five or six miles an hour, holding the center of the street, and 25 feet or more ahead of the sorrel horse, west of it, were another horse and wagon, going along the west side of the street, about a foot from the west curb, traveling 2 or 3 miles an hour; that the Ford car turned out to the left, and passed the sorrel horse; that the Ford was 4 or 5 rods ahead of defendant; that defendant turned out to pass the sorrel horse; that, after defendant had passed, he saw the plaintiff coming, about 16 feet away; that defendant had turned to the right; that plaintiff first turned to the left, and then turned to the right, and ran against and into the rear east fender of defendant's car. Defendant's evidence tends to show that, prior to and at the time of the accident, he was driving at a rate of speed not exceeding 15 miles an hour, but some of plaintiff's witnesses put it as high as 25 or 30. Defendant claims that, just prior to the accident, plaintiff was driving north, about 4 to 6 feet from the east curb; that he knew the maximum speed allowed under the ordinance; that plaintiff was driving 18 to 20 miles an hour. Plaintiff himself testifies that he was driving between 12 and 15 miles--not over 15. Some of his witnesses put it, 17 or 18. Plaintiff says that his machine was practically stopped, not going over 5 miles an hour at the time of the actual collision. The accident happened at about 6:30 P. M., as plaintiff was going to his work. It was dusk, but the evidence of some of the witnesses tends to show that persons could see from 100 to 200 feet. Defendant's car and the plaintiff's motor cycle each had Prest-O-Lites. The evidence is quite conflicting as to the distance the auto and motor cycle were from the east curb at the time of the collision. The defendant testified that his car was 10 feet from the curb, another says 12 feet, and a man who was riding with the defendant testified, on direct examination, that it was 10 to 12 feet, but, on cross-examination, said that, shortly prior to the accident, defendant's car was 4 feet from the east curb. Several witnesses for plaintiff say that defendant's car was not more than 4 feet from the curb; one says 2 or 3 feet; another, that the front end of defendant's car was from 4 to 6 feet, and the rear part, 2 feet; and plaintiff's claim is that defendant had turned sharply to the right. Some put plaintiff at 4 feet from the curbing; others say that he was within 2 or 3 feet; others that he was rubbing almost against the curbing. There was evidence that the widest part of plaintiff's machine was 34 inches. Some of the witnesses say that the space was so narrow that plaintiff could not pass between the curbing and defendant's machine. Plaintiff testifies that he could pass in a space of 4 feet. Plaintiff's witnesses estimate the speed at which defendant was driving variously, ranging from 20 to 30 miles an hour, and his evidence tends to show that the lights on defendant's car were not dimmed. Plaintiff thought they were electric lights, but was not sure. Plaintiff's body was thrown on the parking, and only his feet extended into the street over the curb. There seems to have been a jam at the point of the accident, and appellant in argument refers to it as such. Some of the witnesses say there were two vehicles, and another says there were three abreast, at the time defendant tried to go around. We have attempted not to go into details as to the evidence, and shall not do so further. The foregoing states the situation in a general way.

The errors assigned, for the most part, are in reference to the instructions given by the court and requested instructions by the defendant which were refused.

1. The first assignment, however, is that the court erred in overruling defendant's motion for new trial, and erred in overruling every point and paragraph thereof. Appellee insists that this assignment is insufficient, citing Trainor v. Maine & Co., 184 Iowa 549, 553, 168 N.W. 872, and other cases. However, in one of the brief points, defendant contends that, because plaintiff was riding at a higher rate of speed than permitted by the ordinance, he was guilty of contributory negligence, as a matter of law, and on this they cite Clark v. Weathers, 178 Iowa 97, 159 N.W. 585; Larsh v. Strasser, 183 Iowa 1360, 168 N.W. 142; Dircks v. Tonne, 183 Iowa 403, 167 N.W. 103; Kelley v. Kelley, 187 Iowa 349, 174 N.W. 342; Chapman v. Chapman, 181 Iowa 801, 165 N.W. 96. Appellee contends that, even though plaintiff was traveling at a higher rate of speed than 15 miles, this would be immaterial, if it did not directly contribute to the injury; that, if he was traveling at a speed in excess of the limit, it is only presumptive evidence of want of due care. Plaintiff cites, on this proposition, Rowe v. United Coml. Trav. Assn., 186 Iowa 454, 172 N.W. 454; Barnes v. Barnett, 184 Iowa 936, 169 N.W. 365; Joyner v. Interurban R. Co., 172 Iowa 727, 731, 154 N.W. 936. The court instructed quite fully on the question of contributory negligence, in one instruction saying that, if the jury should find that, at the time and place in question, plaintiff was operating his motor cycle at a speed in excess of 15 miles an hour, this would be presumptive evidence that he was driving at a rate which was not careful and prudent. In another, the court said that contributory negligence is such negligence as contributes in any degree, directly or proximately, to the injury; in another, that the jury could not require of the defendant a higher or greater degree of care than it should require of plaintiff; in others, that plaintiff must establish, by a preponderance of the evidence, that he was without negligence in any degree contributing to his injury, and so on. We deem it unnecessary to discuss the cases cited, since the jury could have found, from the evidence before set out, that plaintiff was not traveling at a speed in excess of 15 miles an hour. In any event, the instructions present the question fairly, and in such a way as that appellant may not complain. Under the record, we think it was a question for the jury to say whether plaintiff was guilty of contributory negligence, and likewise, whether defendant was guilty of negligence.

2. It is thought by appellant that the court erred in Instructions 1 and 2, because they copied the pleadings, and submitted issues upon which there was no evidence. The pleadings were not long or complicated. The court followed, in a general way, the language of the pleadings, and possibly they might have been condensed a little more; but, under the record,...

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