Rogers v. Jefferson
| Decision Date | 06 April 1937 |
| Docket Number | 43740. |
| Citation | 272 N.W. 532,223 Iowa 718 |
| Parties | ROGERS v. JEFFERSON. |
| Court | Iowa Supreme Court |
Appeal from District Court, Black Hawk County; A. B. Lovejoy, Judge.
This is an action at law for damages alleged to have been sustained by the plaintiff in a collision between an automobile in which she was riding while it was being driven by her son and one driven by the defendant. The defense was a general denial. The court overruled defendant's motion for a directed verdict, and the cause having been submitted to the jury, a verdict was returned for the plaintiff. Defendant appeals.
Affirmed.
Hal H Mosier, of Waterloo, and Hal W. Byers and McMartin, Herrick & Langdon, all of Des Moines, for appellant.
McCoy & Beecher, of Waterloo, for appellee.
Appellee concedes the substantial accuracy of appellant's statement of facts, so we adopt it with some modifications which seem conducive to brevity.
This accident happened about 6 o'clock on the evening of August 25, 1934, about 3 miles west of Dunkerton, at an intersection of north and south and east and west graveled county trunk roads. The appellee, Pearl Rogers, and her husband and son were on their way home from Waterloo. The son, George, eighteen years of age, was driving, with his father sitting beside him. The mother (plaintiff-appellee herein) was in the back seat. They were traveling north. Defendant-appellant was accompanied by his wife and one son in the front seat and another son in the back seat, and was driving easterly toward the intersection where the accident occurred. The intersecting highways were about the same width. The day was clear and the roads were dry. At the southwest corner of the intersection was a pasture in which there was nothing to prevent the drivers of the cars involved from seeing each other as they approached the intersection.
The driver of appellee's car testified that as he drove north to the intersection he saw the appellant's car coming from the west at about the same distance as he was from the crossing, to wit, about 30 rods. Both cars were traveling according to his estimate, at approximately the same rate of speed, 30 to 35 miles per hour. After seeing appellant's car at the distance stated, he proceeded north, and did not again see the car until the instant of collision. The husband of appellee testified that he did not look to the west (the direction from which appellant was coming) at any time; and appellee looked only to the right to see that there was no car coming from that quarter, and did not see appellant's car until the moment of collision.
The witness Wehling, working in a field nearby, saw both cars approaching, appellant's at about 30 miles per hour, and testified that he thought there was going to be an accident because " they were both going about the same speed and neither one seemed to slow up."
Appellant saw the car in which appellee was riding when the latter was at a distance of about 1500 feet from the intersection, and thereafter did not see it again until " just a fraction of a second before the collision." According to the testimony of the appellant, the cars met in such a way that his right front corner and the left front corner of the other car collided.
The testimony of appellee's son differed somewhat from that of appellant in this regard. He said:
Appellee adds somewhat to the statement of facts hereinbefore set out. Among other things, she says that the southwest and northwest corners of the intersection at which the collision occurred are square corners, and not rounded; and then, perhaps as a conclusion but by way of explanation, adds that there were two points of danger for traffic approaching said intersection from the south, viz., the point south of said intersection at which the traffic coming from the east and turning south came upon the north and south road, and the point at which the paths followed by the north and south traffic and the east and west traffic intersected.
We regard these facts also as having a direct bearing upon the question before us.
The undisputed evidence shows that there was a " Slow" sign west of the intersection. This would be in the line of appellant's progress to the intersection. There was a " Stop" sign at the north of the intersection, this being in the line of travel of the Rogers car had it proceeded past the intersection. There was no sign of any kind regulating traffic on the south side of the intersection and none east thereof. These facts were known to the driver of the Rogers car and very properly have a bearing upon the question whether he was negligent in his movements or not.
As we have frequently said, the difficulty in cases of this kind is not in the statement of the rules of law, but in the application thereof; and the question under examination is another example thereof.
Appellant urges but one error in this appeal. That is (in his own language) " * * * that the court erred in overruling the defendant's motion for directed verdict, for the reason that the plaintiff failed as a matter of law to sustain her burden of proving freedom from contributory negligence."
No exceptions were taken to the instructions of the court and, whether they are right or wrong, they are the law of the case. Kroloff v. Southern Surety Co., 197 Iowa, 1244, at page 1249, 198 N.W. 629.
The trial court in instructing the jury as to the considerations which should actuate them in determining whether appellee at the time of the accident was exercising the care to avoid injury that ordinarily careful and prudent persons would use under like or similar circumstances, instructed the jury:
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