Samuelson v. Sherrill
| Decision Date | 21 June 1938 |
| Docket Number | 44169. |
| Citation | 280 N.W. 596,225 Iowa 421 |
| Parties | SAMUELSON v. SHERRILL et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Black Hawk County; Ralph W. Hasner Judge.
An action for damages for personal injury claimed to have resulted from the negligence of the defendant in the operation of an automobile. There was judgment for the plaintiff. The defendant appeals.
Affirmed.
Reed Beers & Graham, of Waterloo, for defendant-appellant.
McCoy & Beecher and Butterfield & Butterfield, all of Waterloo, for plaintiff-appellee.
This action was brought by Harry Junior Samuelson, a minor, by his next friend, to recover from the defendants damages for personal injury suffered by the plaintiff by reason of the alleged negligence of the defendants. A verdict was directed as to the defendant Cowin, and the action proceeded to a final verdict and judgment against the defendant, Sherrill. There was a verdict for $4,750, upon which judgment was entered, and the defendant appeals.
The pertinent facts are not in serious dispute. The plaintiff at the time of the accident in question was between eleven and twelve years of age. The accident happened on the evening of January 6th, 1936, on Dawson street, one of the principal thoroughfares of the city of Waterloo, Iowa, at about 5:30 P M. Dawson street runs in an easterly and westerly direction and is intersected near the place of the accident here involved by Grandview and Fairview avenues. These intersecting streets are about 700 feet apart. On the evening of the accident Dawson street had been covered with snow which had been traveled over and then scraped for a width of about eighteen feet leaving some snow piled up on each side of the eighteen foot strip and leaving the surface of the street which was not paved somewhat rough, uneven and icy. The defendant, Sherrill, stopped his car at the intersection of Fairview avenue with Dawson street. There were some children, including the plaintiff and a Carl boy, standing or playing upon the street near this intersection. There is some dispute as to whether the boys who were playing there asked Mr. Sherrill to permit them to attach their sleds to his car or whether Mr. Sherrill invited them to do so. At any rate, sleds were hooked on to the rear of Mr. Sherrill's car and he proceeded on Dawson street westerly and stopped his automobile about half way between the two intersections we have mentioned to permit a passenger to alight from his car. At this stop the Carl boy and the plaintiff, Harry Samuelson, both lying on their stomachs on their sled, one on top of the other, took hold of the left rear fender or the left bumper with their right hands and another sled similarly loaded was similarly attached to the right hand rear corner of the automobile. Mr. Sherrill then proceeded on westerly and at or near the intersection of Dawson street with Grandview avenue the automobile had acquired a speed of some twenty or twenty-five miles an hour and the boys on the sleds released their hold upon the automobile because, as they testified, the speed had increased to such an extent that they became frightened. The boys who had attached themselves to the right rear corner of the car loosened their hold on the car and turned their sled into the snow bank at the right hand side of the cleared portion of the street. The boys on the left of the rear of the car let loose of the car shortly after the boys on the right. When the boys on the left, which was the Carl boy and the plaintiff, released their hold the sled upon which they were riding turned to the left, either by reason of something the boys themselves did or by reason of the speed at which the sled was going at the time it was released, and catapulted or slued to the left and clear of the Sherrill car but directly into the car of Russell Cowin which was proceeding easterly on Dawson street. The collision resulted in the death of the Carl boy and very serious injury to the plaintiff, Harry Samuelson.
There were several grounds of negligence alleged by plaintiff but only one of such grounds was submitted to the jury by the court, and this ground was submitted to the jury in Instruction No. 5, as follows: " You are instructed that the only charge of negligence made by the plaintiff against the defendant which is submitted for your determination is as follows: That the defendant Cyrus M. Sherrill, was negligent in that the defendant, with knowledge that the plaintiff was riding on a sled behind the defendant's automobile and holding on to the rear of the automobile, drove his automobile at a rapid rate of speed."
One of the assignments of error argued by the appellant is that the plaintiff did not sustain the burden of proof as to the ground of negligence submitted to the jury and this contention was raised by the defendant in motions to direct a verdict and for new trial, and it is here presented as one of the grounds for a reversal. Reported cases are so numerous in this and other states that it is unnecessary to cite them stating and approving the rule on the general proposition that if the driver of a vehicle knows that children of tender age are occupying a hazardous position on or near the vehicle the driver must use ordinary care not to injure them. In the instant case the driver knew of the dangerous position occupied by the plaintiff and the other boys; he knew the condition of the street over which he was traveling; he knew the speed at which he was driving; he knew the condition of traffic on the street, and under such circumstances the defendant was in duty bound to exercise such reasonable care and prudence for the safety of the plaintiff and the other children as a reasonably careful and prudent person would exercise under like or similar circumstances and conditions. And if under such circumstances, with knowledge of the facts, above related, and with knowledge that the plaintiff was riding on a sled hanging on to the rear of the defendant's automobile, the defendant operated and drove his car at a greater rate of speed than an ordinarily careful and prudent person would have used, then the defendant would be guilty of negligence. The court properly and very plainly submitted this rule to the jury and the jury by its verdict found the defendant guilty of negligence as charged. We do not think the court erred in the submission of the question of defendant's negligence to the jury, and we conclude that the record warranted such submission.
Whether a particular speed of an automobile is or is not excessive and negligent depends entirely on the surrounding circumstances. Driving the car at twenty or twenty-five miles an hour would not of itself be...
To continue reading
Request your trial