Smith v. Spirek

• Decision Date: 20 November 1923
• Docket Number: 35591
• Parties: GEORGE V. SMITH, Administrator, Appellee, v. E. J. SPIREK, Appellant
• Court: Iowa Supreme Court

195 N.W. 736

196 Iowa 1328

GEORGE V. SMITH, Administrator, Appellee, v. E. J. SPIREK, Appellant

No. 35591

Supreme Court of Iowa, Des Moines

November 20, 1923

Appeal from Webster District Court.--G. D. THOMPSON, Judge.

ACTION to recover damages resulting from the alleged negligence of the defendant in the operation of his automobile, causing the death of plaintiff's intestate. The opinion sufficiently states the facts. Verdict of the jury finding for the plaintiff and assessing a recovery in the sum of $ 5,500. From the judgment entered defendant appeals.

Affirmed.

Healy & Breen, for appellant.

Jacobs & McCaulley and Kelleher & Mitchell, for appellee.

DE GRAFF, J. PRESTON, C. J., EVANS and STEVENS, JJ., concur.

OPINION

DE GRAFF, J.

The controlling question in the determination of the instant appeal involves the doctrine of contributory negligence. The decisive fact questions relate to the credibility of two sharply defined and diametrically opposed versions of the circumstances and occurrences of the accident giving rise to the claimed damages. This opinion will not concern itself primarily with the allegations of negligence of the defendant and the proof offered in support thereof. It will be necessary, however, to briefly outline the facts before entering upon a discussion of the controlling issue.

On the morning of the 29th of September, 1920, the defendant with his family drove by auto from his farm in Webster County to the little town of Yetter, in Calhoun County. The object was to visit his sister. The return trip began about 4 o'clock on the same afternoon. The general direction from Yetter to the defendant's home is easterly. The car was driven by the defendant's son, Allen, a boy about fifteen and one-half years of age. The car was an Oldsmobile, with a left-hand drive. The defendant occupied the right-hand side of the front seat, with the driver. The defendant's wife rode in the rear seat, on the north or left-hand side, and Frank Cerny, the wife's brother, sat to her right. About two miles north of Yetter, the car turned east onto a well traveled highway; and after it had gone a distance of two or three miles, it was discovered that the road was being repaired by the placement of fresh gravel, which necessitated a shifting of the gears from high to intermediate. As defendant's car was going through this gravel, it was passed by a Hudson car, driven east by Walter Hawthorne. At this time there was a third car parked on the south side of the highway, some 25 rods farther east. This third car was owned by the decedent, George Harrison. The Harrison car had been stopped on the right-hand side of the road, as the supply of gasoline had been exhausted. After the Hawthorne car had passed the defendant's car and had come alongside of the Harrison car, it also stopped, in order that Mr Hawthorne could make inquiry of Harrison as to the cause of the trouble. Mr. Harrison at that time was on the ground looking at his car, and after Harrison had explained the cause of his stopping, Hawthorne suggested that they drive to the Roberts farmhouse, a short distance up the road, and procure the necessary gasoline. Acting on this suggestion, Harrison got on the running board on the north side. During this time, the defendant's car was approaching the two cars, and when two or three rods behind them, sounded the horn, as an indication to the Hawthorne car to move on, so that the defendant's car could continue its progress. The Hawthorne car did proceed east on the road. At this point, the traveled highway was in good condition, with a wide grade of 32 to 36 feet, level, perfectly straight, and with an unobstructed view. When the Hawthorne car stopped the second time, the engine was not shut off, and about half of the car extended into the roadway, and the other half on the grass line.

It is the contention of the defendant that, as his car was in the very act of passing the Hawthorne car, Harrison stepped backwards off the running board, still talking to the occupants of the Hawthorne car, and in so doing, stepped directly into the path of the passing car, with but a lapse of one or two seconds from the time he stepped from the running board until he was struck by the defendant's car. Plaintiff's theory and evidence are in direct conflict.

Hawthorne testified that, as he stopped the car, Harrison "stepped off the running board, and was still talking. The conversation continued. I have no impression as to the time that elapsed between his stepping off and his being struck by the Spirek car. He was standing about three feet from the car, facing me." Mrs. Hawthorne testified: "As soon as our car stopped, Harrison stepped off of the running board." Her husband apparently sensed the danger, as he gave a warning to Harrison, "Look out, George." She further testified:

"From the position where he stood, I don't know whether he could have touched our car, but I think possibly he could. He was just about opposite the front seat, about three feet away. He had not gone either east or west, after stepping off the car. I saw the car strike him."

When the warning was given, Harrison threw up his hands, realizing apparently that the defendant's automobile was attempting to pass the Hawthorne car in such a way as to endanger his position.

Another witness, Mrs. Roberts, who was in the Roberts house on the north side of the road, and who observed the actions of Harrison as the Hawthorne car stopped the second time, testified:

"I saw the car when it stopped. I heard Mr. Hawthorne hollo to Mr. Harrison. He had seen the car before he heard Mr. Hawthorne hollo. It had been stopped there just a short time. I could see Mr. Harrison standing there. He was near the car. I saw Mr. Harrison step ahead about one step, and then he was hit. He stepped ahead towards the Hawthorne car. I saw him move his hands. He was about three feet from the Hawthorne car before he was struck."

Hawthorne further testified:

"When I shouted, Harrison just kind of jumped, and looked at my car like he thought maybe he could make it, and saw it was too close, and put his hands up, and it struck him. I didn't see Harrison again until the car had gotten clear over him. He was at that time up the road, I suppose, three and a half or four rods away from my car."

Hawthorne examined the tracks in the road immediately after the accident. He testified: "I saw where this car had come up behind mine, and it looked like it had missed my fender about a foot."

Another bystander, named Smith, observed the tracks of the car leading back to the place past the Hawthorne car, and he corroborates the statements of Hawthorne.

The driver of the defendant's car saw Harrison on the running board, and observed him standing there when his car was about ten rods behind it. He testified:

"I knew that, when he was standing on the running board, he was just taking a short trip; and I knew, when Hawthorne stopped, that he stopped to let Harrison, who was standing on the running board, off. I was expecting him to get off."

The radiator or the south part of the car struck Harrison. It further appears that the driver did not attempt to turn out from the line he was driving toward the Hawthorne car until within a rod of the car, and the jury was warranted in finding that at that time he was approaching the Hawthorne car at a high rate of speed. One witness says, "25 miles an hour anyway." Another witness, who was working in a field on the north side of the road, saw the Spirek car pass, and he estimates its speed as 35 to 40 miles an hour. Harrison was dragged about one half the distance between the Hawthorne car and the point, some 9 or 10 rods, where the defendant's car was stopped. One witness who measured the distance from the Hawthorne car to the point where defendant's car was stopped, states that it was 145 or 150 feet.

The driver of the Spirek car estimates the speed of his car as about 15 to 18 miles, "when our front wheels were opposite the hind wheels of the Hawthorne car. Our car was going straight east. The wheels were turned a little bit. We were going north some. From the place Harrison jumped off the running board to the place where he was struck by the north side of our radiator was altogether 10 feet; and the distance that our car went forward from the time that he jumped off was a distance of from opposite the hind wheels of the Hawthorne car to nearly opposite the front side of the Hawthorne car; and Harrison traveled more distance from the time he jumped than our car did to the place where he was struck. When Harrison started to jump and run back, he traveled...