Reynolds v. Aller
| Decision Date | 14 March 1939 |
| Docket Number | 44678. |
| Citation | 284 N.W. 825,226 Iowa 642 |
| Parties | REYNOLDS v. ALLER et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Russell Jordan, Judge.
Law action for damages on account of alleged negligence of one of the defendants in driving a truck with the consent of the other defendant, owner of the truck. From a judgment rendered against plaintiff upon a directed verdict he has appealed.
Affirmed.
Holliday & Myers, of Des Moines, for appellant.
Hallagan, Fountain, Stewart & Cless and Paul W. Steward, all of Des Moines, for appellees.
The accident that gave rise to this suit occurred on December 12 1937, at about 7 P.M. At that time Primary Highways #65 and #69, designated also as federal highways, in their route through Des Moines were located for a considerable distance upon East 14th Street of that city. The portion of this street, traversed by these highways, that is material to our discussion extends south 886 feet from an east and west intersecting street known as Court Avenue. This portion of East 14th Street had been opened to traffic a week or ten days prior to the accident. New paving had been laid, 42 feet in width between curbs, and at the south end of the 886 feet a viaduct had been constructed across railroad tracks. The accident occurred on the paving and at a point that was between 160 and 200 feet north of the viaduct. Plaintiff's decedent and two other boys, James Raber and William Forest, meeting at the southeast corner of Court Avenue and East 14th Street, crossed to the west side of the latter street and walked south on the west half of the paving on East 14th Street with the intention of seeing the viaduct. As they proceeded south, and for a considerable distance before the accident, they were in these relative positions, Raber walking on the west curb, Forest immediately east of Raber, walking on the paving, and plaintiff's decedent also walking on the paving was immediately east of Forest. The three were walking abreast in rather close proximity to each other. They were thus proceeding toward the south when a truck approaching from the north struck plaintiff's decedent and so injured him that he did not speak or move thereafter, and soon expired. Defendant Frank C. Aller was driving the truck with permission of defendant Charles W. Aller, the owner. At the close of plaintiff's evidence the defendants' motion for a directed verdict against plaintiff was sustained. From the judgment rendered on the verdict plaintiff has appealed, and assigns as error the ruling on the motion.
As one ground of the motion defendants claimed that plaintiff had failed to sustain the burden of proving that his intestate was free from contributory negligence. Defendants not only contend that the facts and circumstances were such that therefrom a jury could not properly have found that decedent was free from contributory negligence, but also insist that decedent was violating a law of the road found in section 354-a of chapter 134 of the Acts of the 47th General Assembly which reads: " Pedestrians shall at all times when walking on or along a highway, walk on the left side of such highway." In argument plaintiff concedes that decedent violated this statute if the term " highway" therein used is held to mean " street," making the statute applicable inside the limits of cities and towns. But, citing Shannon v. Martin, 164 Ga. 872, 139 S.E. 671, 54 A.L.R. 1246, appellant urges that this word highway is not inclusive of streets in cities and towns and that the section has no application to persons walking on or along such streets.
The dissimilarity between the statutes the Georgia court construed and the provisions found in chapter 134 is such that the Georgia authority is of slight if of any applicability. But from reading chapter 134 in its entirety in the manner the Georgia court viewed the whole of the act it construed, it becomes evident that in many sections of the chapter the legislature either intended that the word highway be inclusive of streets in towns and cities in the broad generic sense of " highway," or intended things that, in its wisdom, the legislature could hardly have had in mind. A few instances will illustrate. Section 205 provides that no person shall drive a motor vehicle upon a highway unless he has a valid operator's or chauffeur's license. It is quite improbable that this prohibition was not intended to affect those driving on streets in cities and towns. Section 286 vests in local authorities the power in their respective jurisdictions to place traffic control devices upon highways under their jurisdiction. Section 320 requires that the highway commission furnish and place on primary roads or on extensions or primary roads within cities or towns certain signs respecting speed, and provides that on all other main highways the city shall so do. Section 375 provides that " Primary roads, and extensions of primary roads within cities and towns are hereby designated as through highways." (Italics supplied.) East 14th Street was such a through highway within the city of Des Moines. To such a highway, though it may traverse a street, section 354-a was quite evidently intended to have application. For imputing a contrary intent we discover no sound reason when the whole act is read. A lessened hazard for the pedestrians on all highways was a probable end to be accomplished in this enactment. It follows that plaintiff's decedent was not only violating section 354-a, but the record appears to be such that, under the holdings in Lindloff v. Duecker, 217 Iowa 326, 251 N.W. 698; Fortman v. McBride, 220 Iowa 1003, 263 N.W. 345; Denny v. Augustine, 223 Iowa 1202, 275 N.W. 117, cases ante-dating the enactment of the section, a jury would not have been warranted in finding that plaintiff's decedent was free from contributory negligence. Not only were decedent and his companions making no observations with respect to on-coming traffic from the rear to which they had turned their backs as they proceeded upon the paving, but the night was dark and at no place along the 886 feet were there any...
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