Rolfs v. Mullins
| Decision Date | 14 May 1917 |
| Docket Number | 31302 |
| Parties | RICHARD ROLFS, Administrator, Appellant, v. T. L. MULLINS, Appellee |
| Court | Iowa Supreme Court |
Appeal from Dallas District Court.--J. H. APPLEGATE, Judge.
ACTION for damages consequent on the death of Helen Rolfs, caused by a collision with defendant's automobile. From judgment for defendant, the plaintiff appeals.
Affirmed.
George Wambach and Dingwell & Clarke, for appellant.
White & Clark and Hunn & Jones, for appellee.
High Street in Des Moines, running east and west, intersects Twelfth Street. Each street is 66 feet wide. There is a jog in Twelfth Street, at the intersection, so that the east line of the street, north of High Street, is slightly east of the north end of the west line thereof south of High Street. It extends north and south from High Street. High Street curves considerably to the southeast at the intersection and about 200 feet east, so that the south curb of High Street east of Twelfth Street is 21 feet north of the south line of High Street west of Twelfth Street, and the distance between the curbs is 40 feet. Double street car tracks from the south on Twelfth Street turn to the west on High Street, and between the outsides of the outside rails, the distance is 14.6 feet. On High Street, west of the northwest corner of the intersection, the curbing is 16 feet from the street lines on each side, and the curb on the north is 9.8 feet from the street railway, and that on the south, 9.6 feet therefrom. The curb from the east swings in 4.5 feet at the north, and on the south, 4 feet, so that the space on the south side was 13.6 feet for about 19 feet west of the northeast corner of the Normandy Apartments, on the south line of High Street and west of west line of Twelfth Street, save for the curve of the railroad tracks in turning, when they come 8 1/2 feet from the south curb. A drug store is located at the northwest corner, and dwellings at the northeast and southeast corners. An electric incandescent light was at the northeast corner, a light in front of the apartments, and a small gas electrolier at the northwest corner, operated from the drug store.
In the evening of November 25, 1914, shortly before 9 o'clock Richard Rolfs and his wife, the decedent, walked east on the north side of High Street to the Twelfth Street intersection, and, as a street car was coming from the south at about the middle of the block, they crossed Twelfth Street and turned on a driveway a little farther on into the street, and, when 12 or 15 feet from the south curbing, were struck by the defendant's car coming from the west. It had slowed down as the street car turned on High Street, and then crossed the tracks. Decedent died about three hours later, because of injuries received. The grounds of negligence alleged are: (1) Excessive speed of the car; (2). failure to give warning; (3) omission of lights; (4) not having car under control; and (5) excessively loading the car. The last ground was withdrawn from the jury because of not being sustained by the evidence.
I. The plaintiff offered in evidence a city ordinance in six sections, and, on objection as irrelevant and immaterial, three of the sections were excluded. Exception is taken to the exclusion of the sixth only. Counsel concede that it merely embodied common-law rules, and we hold that, if so, there was no prejudice in its exclusion.
II. One Finane testified that he made an observation September 12, 1915, "under conditions of light as they were that evening," as to how far he could see an automobile from the east line of Twelfth Street and south curb of High Street, and, over objection, said he would say about two blocks. On further examination, he was unable to say whether A motion to strike his testimony from the record was renewed and sustained, the court saying:
Defendant:
The last question was not open to the objections interposed, for its purpose was to show similarity of conditions at the different times. The answer, "Yes, sir," did not reinstate the stricken testimony, and the remainder of the answer was not responsive to the inquiry, and, if not agreeable to plaintiff, objection thereto should have been interposed by motion to strike. Not having so done, he is not in a situation to complain.
III. Evidence was received, over objection, that a person from the east side of Twelfth Street and 12 or 15 feet north of the curb, under conditions as of the time in question, could see an automobile in High Street two blocks west. This evidence was admissible as tending to illustrate the situation as bearing on the issue of whether decedent was in the exercise of ordinary care, the administrator of her estate having testified that, as they were crossing the street, she looked in that direction, and did not see anything approaching from that direction. This is not questioned by appellant, but he contends that decedent, in crossing the street, was not bound to look or listen for approaching automobiles. Neither Mosso v. Stanton Co., 85 Wash. 499 (148 P. 594), nor Johnson v. Scott, 119 Minn. 470 (138 N.W. 694), on which appellant relies, touches the point. She was bound to exercise ordinary care for her own protection, and whether she did so was left an open issue for the jury. When the street car was about a half block down Twelfth Street, coming north, she crossed Twelfth Street to the northeast corner of the intersection, and from there, according to her husband, walked on to the east 50 or 60 feet, and then turned down a private driveway into the street.
The witness testified that neither saw anything; that, when they had reached the northeast corner of the intersection, the street car was beginning to turn. According to the witness then, he and decedent must have walked 50 or 60 feet from the northeast corner of the intersection after the street car began to turn, and then to the place of collision, while the street car was moving far enough to enable defendant to drive his car through and reach the same place. Had she looked west before stepping into the street, would she not have seen the car? If her vision was obstructed by the street car, ought she not, in view of the condition of the street with reference to being lighted, to have looked again to ascertain if any vehicle might not be approaching from beyond? We do not say that she should have done so, but do say that...
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