Robertson v. Carlgren
| Citation | 234 N.W. 824,211 Iowa 963 |
| Decision Date | 10 February 1931 |
| Docket Number | No. 40670.,40670. |
| Parties | ROBERTSON v. CARLGREN. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Wapello County; Elmer K. Daugherty, Judge.
While driving an automobile upon a public street in Ottumwa, the defendant ran into and killed Mary G. Robertson, plaintiff's intestate. Therefore this action was brought by the plaintiff to recover damages from the defendant for the alleged wrongful death. There was a trial to a jury, which rendered a verdict in plaintiff's favor. From the judgment entered thereon, the defendant appeals.
Affirmed.Jones & White, of Ottumwa, and C. C. Putnam, of Des Moines, for appellant.
Chester W. Whitmore, of Ottumwa, for appellee.
On June 22, 1929, Mary G. Robertson, 66 years of age, the plaintiff-appellee's intestate, was walking on East Main street in Ottumwa at the intersection of Fellows avenue, when she was struck and killed by the defendant-appellant's automobile then driven by him.
East Main street in Ottumwa extends in an easterly and westerly direction. Fellows avenueis a north and south public thoroughfare running from the north into East Main street, but does not cross the same and project south thereof. For convenience, there is here set forth a plat showing those streets and the surrounding territory:
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At the time in question, appellee's intestate was walking from the south to the north side of East Main street near the east line of its intersection, with Fellows avenue, where she was struck by appellant's automobile which was driven by him westward on the north side of East Main street. In the northwest corner of the intersection of East Main street and Fellows avenue is a garage. Immediately across Fellows avenue therefrom in the northeast corner of the intersection there is a barber shop and pool hall. To the east of the barber shop and pool hall is a vacant half lot, and directly to the east thereof is a secondhand auto storage and garage. East thereof, and adjacent thereto is what is known in the record as Kent's Grocery Store. South of East Main street there is a lumber yard. An approach to the lumber yard from East Main street is provided near, and a little east of, the intersection with Fellows avenue. This approach is shown on the plat under the designation “road to lumber yard.” The west side of the lumber yard approach is approximately due south from the sidewalk on the east side of Fellows avenue. As an aid to the understanding, a photograph showing Fellows avenue and its junction with East Main street, together with the pool hall, barber shop, and the approach to the lumber yard, is here inserted:
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A single street car line extends along the center of East Main street. When alighting from a street car, passengers sometimes step onto East Main street opposite the approach to the lumber yard. Also several hundred, and possibly 3,000, employees of the packing company daily walk over the lumber yard approach on and across East Main street at the intersection of Fellows avenue. Both Fellows avenue and East Main street were paved with brick.
During the evening of June 22, aforesaid, the said Mary G. Robertson, together with her son and daughter, drove down Fellows avenue from the north to East Main street, then turned to the left, and continued eastward on the south side of East Main street to a point 30 or 35 feet from Fellows avenue, where they stopped, and appellee's intestate alighted from the automobile in order that she might cross the street and make a purchase at Kent's Grocery Store on the north side of East Main street, as before located and described. There is a conflict in the evidence concerning where appellee's intestate crossed East Main street, but, as hereafter will be more fully set forth, the record warrants the jury in finding that she went back to Fellows avenue and proceeded northward in line with the sidewalk on the east side of Fellows avenue. Here she was killed by appellant's automobile, as previously indicated.
After Mary G. Robertson died, the appellee was appointed administrator of her estate, and now brings this suit to recover damages for the wrongful death.
Appellee, in his petition, charges appellant with negligence in the following respects: That, first, he sounded no horn or other warning as he approached Fellows avenue; second, he operated his automobile at 25 miles per hour without reducing the speed at the intersection; third, he failed to have his car under control; and, fourth, he did not keep a proper outlook. Appellant denied those allegations, and affirmatively pleaded that appellee's intestate was guilty of contributory negligence. Furthermore it was pleaded by appellee that his intestate did not see the approaching automobile which killed her, and appellant admitted that allegation.
So far as this appeal is concerned, there are only two grounds for reversal which demandconsideration. They are: First, appellant's freedom from negligence; and, second, appellee's intestate's contributory negligence. No ground for reversal is predicated upon the admission of evidence or the giving of instructions. Therefore only the above-named two propositions are presented for discussion. Such are the issues to be determined on this appeal.
[1][2][3][4][5] I. Was appellant guilty of negligence? Manifestly the evidence presents a jury question. For at least three years, appellant was familiar with East Main street and its intersection with Fellows avenue. On the night under consideration, appellant, an experienced driver, had control of an automobile with four-wheel brakes in good working order. There were lights on his car as well as on other automobiles in the vicinity. Street lights were brightly shining at the intersection, and electric lights were glowing on the various building fronts. Witnesses who testified could clearly see the entire intersection, as well as the streets beyond. Under the circumstances presented in the record, the jury could well find that appellant could have seen appellee's intestate had he kept a proper outlook. That he did not keep such outlook is fully substantiated by the record.
It is claimed by appellant that he did not see the woman before the impact. His failure to see her was not brought about by darkness, fog, dust, glaring lights, or anything else that sometimes confuse automobile drivers. Apparently he was not looking forward, but in another direction. According to the testimony of Alexander Robertson, the husband of Mary G. Robertson, appellant called at the Robertson home Sunday evening after the accident, and there, during a conversation with the family, stated:
Likewise Edith Robertson testified concerning the same conversation, and declared:
Will Robertson testified to the same effect.
A stop sign was located on Fellows avenue north of East Main street. In this block, as before explained, there were buildings on the north side of Main street, which would have made useless the alleged observations and prevented appellant from seeing up Fellows avenue before he reached the intersection. Additional to the foregoing, it does not appear that there was an automobile on Fellows avenue likely to come in contact with appellant which would in any way distract his attention. The jury could consider the useless observations to the north, and the absence of diverting circumstances when determining whether or not appellant was keeping a proper outlook at the intersection. Although there was a stop sign on Fellows avenue, we do not here suggest or decide that the appellant should not make proper observations to the north consistent with his duty to look forward as well. However, in view of the surrounding conditions, a jury well could find that there was no diverting circumstance tending to cause the appellant to refrain from making any observations straight forward. Moreover, as before said, appellant was driving at the rate of approximately from twenty to twenty-five miles per hour as he approached the intersection; yet at no time until after the accident did he lessen that speed. Thus he operated the automobile, although at the time there was a city ordinance declaring that the pedestrian should have the right of way over the intersection. Something is said in appellant's argument about the wrongful admission of this ordinance into the evidence. However, the record indicates that the ordinance was adopted by the city, and published. Furthermore, there is no assigned ground for reversal based upon the inadmissibility of this ordinance. Consequently, if there is error in this respect, we are not permitted to consider it. Blomgren v. Ottumwa (Iowa) 227 N. W. 823 (local citation, 824); State v. Terry, 207 Iowa, 916 (local citation, 923), 223 N. W. 870. Hence, so far as this appeal is concerned, it must be considered that the ordinance was properly admitted into the record. Because of the facts and circumstances thus presented, the jury could find, if they so elected, that appellant did not keep a proper outlook and failed to control his automobile in such a manner as to give appellee's intestate the right of way over the intersection. Nor...
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