Rolfs v. Mullins

• Decision Date: 14 May 1917
• Docket Number: No. 31302.,31302.
• Citation: 179 Iowa 1223,162 N.W. 783
• Parties: ROLFS v. MULLINS.
• Court: Iowa Supreme Court

179 Iowa 1223

162 N.W. 783

ROLFS

v.MULLINS.

No. 31302.

Supreme Court of Iowa.

May 14, 1917.

Appeal from District Court, Dallas County; 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, of Des Moines, and Dingwell & Clarke, of Adel, for appellant.

White & Clarke, of Adel, and Hunn & Jones, of Des Moines, for appellee.

LADD, J.

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 in 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 railway tracks in turning when they come to 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.

[1] 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.

[2] 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 “the conditions at the time I made these observations were different from what they were on the night of the accident as to lightness or darkness. I don't recall that it was lighter or darker than it was that evening.” A motion to strike his testimony from the record was renewed and sustained, the court saying:

“I think with no more of an examination than has been made, that will have to be sustained. It has not been shown whether the car was lighted up when he saw it or anything about it.”

“Defendant: Q. Did you observe the headlight of the approaching car on that side of the street? (Plaintiff objects as incompetent and immaterial. Overruled, and plaintiff excepts.) A. Yes, sir; I could see the headlight two blocks.”

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.

[3][4][5] 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 Pac. 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. “Q. Before you went into the street at that particular place, what did you and your wife do? A. My wife was looking west, and I was looking east.” 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...