Ryan v. Trenkle
| Decision Date | 15 March 1927 |
| Docket Number | 37968 |
| Citation | 212 N.W. 888,203 Iowa 443 |
| Parties | MARIE RYAN, Guardian, Appellant, v. H. TRENKLE et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Dubuque District Court.--P. J. NELSON, Judge.
Action for damages for personal injuries caused by the collision of a bicycle, ridden by plaintiff's ward, with defendants' automobile. Upon the conclusion of all the testimony, defendants' motion for a directed verdict was sustained. Plaintiff appeals.
Affirmed.
Hurd Lenehan, Smith & O'Connor, for appellant.
Kenline Roedell, Hoffman & Tierney and Lyon & Willging, for appellees.
DE GRAFF, J.
This is the second appearance of this cause on appeal in this court. See Ryan v. Trenkle, 199 Iowa 636, 200 N.W. 318. The former opinion sufficiently states the facts, and we will incumber this opinion with such facts only as will tend to make understandable the propositions urged by appellant for a reversal.
Upon the first trial, there was but one specific ground of negligence submitted to the jury: to wit, that the defendants did not have their automobile under proper control. On appeal, this court held that this allegation had no support in the evidence, and that the defendants' motion for a withdrawal of this particular issue from the consideration of the jury should have been sustained.
The material facts in the instant case are substantially the same as the evidence upon the former trial. The former decision is the law of this case on the propositions ruled therein, and will not be overruled in this case. Norman v. City of Sioux City, 200 Iowa 1343, 206 N.W. 112; Anthon St. Bank v. Bernard, 198 Iowa 1345, 201 N.W. 59; Nelson v. Betcher Lbr. Co., 96 Minn. 76 (104 N.W. 833); Nason v. Chicago, R. I. & P. R. Co., 149 Iowa 608, 128 N.W. 854.
It may be observed that nearly all of the testimony offered upon the former trial was read into the evidence in this case from the transcript. The plaintiff's ward, Harold Ryan, testified on both trials; and, although there is a semblance of change as to some of the details of the accident, there is nothing that may be termed a substantial or material change.
The original petition of plaintiff recited the following specifications of negligence: (1) Failure to give any warning signal of defendant's intention of turning west in the street intersection in question, (2) failure to have the car under proper control, and (3) failure to stop the car after defendants discovered plaintiff's ward in a position of danger. As pointed out, the trial court in the first instance submitted to the jury the specification of failure to have the car under proper control. This question having been determined adversely to plaintiff by this court, and the circumstances upon the second trial disclosing no change of evidentiary facts in this particular, we will not, at this time, discuss further the proposition. Furthermore, our former decision determined that there was no basis in the record for submitting to the jury the question of last clear chance, and therefore we have no occasion to pursue that inquiry further.
There remains, therefore, to consider plaintiff's allegation of negligence in that the defendants failed to give any warning signal of their intention to make a turn in the street intersection, and also the further allegation contained in an amendment to the petition: to wit, that the defendants, at the time of making the turn with the automobile in the intersection of Ninth and Main Streets in the city of Dubuque, did not look to see whether there was sufficient space to make such movement in safety.
The accident in question happened September 2, 1921, about 5:45 P. M. It was a warm summer day. The sun was shining. The street was dry, and entirely free from traffic, except for the bicycle and the automobile in question. It is evident that the boy on the bicycle could see the automobile as plainly as the driver of the car could see the boy. Main Street in Dubuque is a north and south street, intersected at right angles by Ninth Street. The defendants' car approached the intersection from the south, driving along the east side of Main Street. The boy on the bicycle approached the same intersection from the north, riding on the west side of the street. About in the center of the intersection is a metal plate, known in the record as a "silent policeman." As the auto turned west into Ninth Street, the boy on the bicycle turned the rounded corner west into Ninth Street; and when both auto and bicycle were moving west in Ninth Street the bicycle changed its course southwesterly across Ninth Street close to the right front wheel of the moving auto, and thereupon the auto swerved to the left and southwest. The boy claims that the automobile bore down upon him, and that he was unable to get out of the way. This proposition is answered in the former opinion, and it is there said:
"There is no consistent explanation in the record, of the presence of the boy at the place of the accident, unless it be that he did try to cross the street in front of the slowly moving automobile." Ryan v. Trenkle, supra, loc. cit. 642.
Was the failure, if any, of the driver of the automobile to give the statutory or other warning signals a proximate cause of the injury claimed? It is elementary that negligence may...
To continue reading
Request your trial