Speck v. Hedges

• Decision Date: 09 June 1964
• Docket Number: No. 51348,51348
• Citation: 256 Iowa 787,128 N.W.2d 918
• Parties: William SPECK, Appellee, v. Robert E. HEDGES and Haubrich Construction Co., Appellants.
• Court: Iowa Supreme Court

Page 918

128 N.W.2d 918

256 Iowa 787

William SPECK, Appellee, v. Robert E. HEDGES and Haubrich Construction Co., Appellants.

No. 51348.

Supreme Court of Iowa.

June 9, 1964.

Paul W. Deck and Robert J. Larson, Sioux City, for appellants.

John E. Hutchinson and Darrell E. McEntaffer, Sioux City, for appellee.

PETERSON, Justice.

Plaintiff sued defendants for damages by reason of their truck striking plaintiff as he was crossing 4th Street in Sioux City in the pedestrian sidewalk area. He was seriously injured. Jury returned a verdict of $22,000. Defendants appealed.

I. Plaintiff was 69 years of age. He is married and living with his wife. They have six children, all grown to maturity. He worked many years as a laborer, mostly for Cudahy Packing Company until they closed their plant at Sioux City in 1953. In 1954 plaintiff found part time employment with Sioux Carving Shop, assembling furniture. He was doing this type of work immediately prior to January 29, 1962. He normally only worked four hours a day because he could not earn over $1200 a year, since he was drawing $105 per month social security.

On Saturday, January 29th, he went to work about 7 A.M. On that particular day he worked until 2:30 P.M.

When plaintiff left his work at 2:30 he caught a bus nearby and rode to 4th and Nebraska Streets. He walked from there to the Cornhusker Tavern, a distance of two blocks. He cashed his pay check in the tavern, bought some tobacco, and sat down and had two glasses of beer. When he left the Cornhusker Tavern he walked west on the south side of 4th Street to the southwest corner of 4th and Pearl Streets. At that point he wanted to go across 4th Street starting at the southwest corner of the intersection and going to a drug store located on the northwest corner of the intersection.

Fourth street is a one way street with traffic flowing toward the west. As he was standing on the curb waiting for the signal light to change to green for north bound pedestrian traffic he had a clear view of the intersection. He knew he was going to cross the street and looked across to inspect the traffic. He noticed cars stopped on the north side of the 4th Street intersection, also waiting for the green light, but he did not see a truck. He crossed about three-fourths of the distance between the curbs when he was struck by the truck. The truck was stopped on Pearl Street and was going through the intersection, and then to the right, and west on 4th Street. Plaintiff was walking within the two white lines of the cross walk.

Plaintiff testified he never saw the truck until it was very close to him, as it was coming around the corner to go west on 4th Street. He says he could not get out of its way. At first he kept going, but held out his right hand. In the confusion of the moment when plaintiff saw he could not get away from the truck he held out his hand and stopped. Defendant Hedges, driver of the truck, testified he then sounded his horn and stopped. Plaintiff then started walking again in the cross walk and defendant started ahead with his truck. The truck then reached plaintiff and he fell forward across the right fender, striking his head against the right front headlight and knocking out the lens. The sun was shining and the streets were dry.

Plaintiff did not recall what happened after he was struck and fell to the ground. Other witnesses testified about going to him and pulling him away from in front of the truck and straightening him out on the pavement, with somebody's coat under his head. The police came within a few moments and testified about what they found as above outlined, although none of them saw the accident. The ambulance came in a very short time and took plaintiff to St Vincent's Hospital. He did not remember anything again until he awakened in the hospital.

Dr. Jones, his family physician, testified he made a diagnosis and took x-rays and found plaintiff suffering from concussion, shock, multiple abrasions, and fractures of his right pelvis, right ankle and left knee.

Plaintiff was in the hospital seven weeks. He was unconscious during the first part of the time, but regained consciousness and gradually became better. During the last weeks he took exercises in the therapy department for walking. At first he walked with a walker, later with crutches, and later with a cane.

Immediately after plaintiff's injury the doctor gave him treatment for shock and sedation to alleviate the pain and it also became necessary to put him in traction in order to cure, as far as possible, his pelvis and his legs.

Dr. Jones stated he had made a prognosis of plaintiff's disability shortly before the trial and it was his opinion that plaintiff had approximately 25 to 30% disability of the body as a whole. He testified he would have to see Mr. Speck from time to time in the future with reference to his injuries. In the doctor's opinion plaintiff could not go back to his business and could not do any manual labor. He was not sure as to whether plaintiff's disability would improve in the future, but he did not think so. Plaintiff stated at the time of the trial that he was still experiencing pain in his knee, hip and back and that such pain had persisted constantly since the time of the accident. At the time of the trial he was still using a cane because he had to have something for support. He could not stand up, even with the help of the cane, for more than several moments at a time. The fracture of the pelvis was noticeable at three different places. Dr. Krigsten was a specialist on the case and he testified plaintiff would have a deformity as to his pelvis area and a limitation of motion in the hip joint. He also testified, in his opinion, plaintiff had a total permanent disability of 25% as to the body as a whole. He did not think plaintiff's condition would improve and from the nature of it there was a probability that it might become worse.

Plaintiff and one other witness testified he stepped off the curb on the southwest corner of the intersection when the green light appeared and proceeded in the pedestrian walkway, marked by white lines, toward the northwest corner. Other witnesses testified he came from the northwest corner of the intersection. It was immaterial from whence he came; he was hit by the truck. At any rate it was a question of fact for the jury to decide. It was stipulated by the parties that according to mortality tables plaintiff had a life expectancy of 10.64 years.

II. Appellant relied upon the following propositions for reversal: 1. The motion for directed verdict made after plaintiff rested his case should have been sustained, as plaintiff failed to prove or meet the burden of proof concerning freedom from contributory negligence. 2. The award of damages to plaintiff by the jury was excessive.

III. The question of contributory negligence is normally and generally a question for the jury. Citation of authorities is unnecessary. R.C.P., 344(f), par. 10, 58 I.C.A.

We have stated the situation in the case of Hull v. Bishop-Stoddard Cafeteria, 238 Iowa...