Stutzman v. Younkerman

• Decision Date: 13 December 1927
• Docket Number: 38533
• Citation: 216 N.W. 627,204 Iowa 1162
• Parties: ROSLEY STUTZMAN, Appellee, v. CLARA R. YOUNKERMAN, Appellant
• Court: Iowa Supreme Court

216 N.W. 627

204 Iowa 1162

ROSLEY STUTZMAN, Appellee, v. CLARA R. YOUNKERMAN, Appellant

No. 38533

Supreme Court of Iowa, Des Moines

December 13, 1927

Appeal from Pottawattamie District Court.--O. D. WHEELER, Judge.

Action for personal injuries sustained from being struck by defendant's automobile. Judgment for plaintiff. Defendant appeals.

Affirmed.

Kimball Peterson, Smith & Peterson, for appellant.

John J Hess, for appellee.

MORLING J. EVANS, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ., concur.

OPINION

MORLING, J.

The plaintiff, a girl then eight years of age, while crossing southwardly along the east side of a street intersection, was struck by defendant's automobile, coming from the west along the south side of the intersection. Plaintiff's contention is that defendant failed to keep proper lookout, and did not have her car under control. Defendant's is that plaintiff suddenly emerged from behind an automobile which was traveling westwardly, and ran into her car. Plaintiff's claim is that she was struck by defendant's right fender, just as she was ready to step on the south curb. Defendant's is that the left fender struck the plaintiff when plaintiff was about six feet from the curb. Defendant's car swerved into the curb. She contends that she swerved it, to avoid striking the plaintiff.

When plaintiff arrived at the northeast corner of the intersection, a team and wagon and an automobile were passing west. Plaintiff testifies that she "looked in the street to see if there was anything else. Then I went across the street. I walked at an ordinary gait. I was just ready to step on the curb. I did not see the automobile that struck me. I was at the hospital when I next remember anything."

Her companion testifies:

"There was a car passing, going west. Then, immediately after that car passed, she started to go across. I stood there and watched her. The car passed near the middle of the street where the wagon was. Then it was that Rosley got hit. It happened in a very few seconds."

She further testifies that plaintiff walked "straight from one sidewalk to the other. While she was walking across the street, she was just ready to step onto the curb when" defendant's car hit her. This witness says that plaintiff walked slowly, at an ordinary gait. At that time, to the rear of the wagon previously mentioned, Drake was driving a team west. He says:

"I was probably 100 feet east of the line she took in crossing the street when she started to cross. I stopped my horses when the car hit her. I was probably 50 feet from the line she took to cross when I stopped my horses."

He says:

"The little girl walked across, and she was just ready to step on the curb when the car hit her. The car came in at a sort of an angle, and hit her just as she went to step on the curb, and where the sidewalk is. She came directly across from the other sidewalk to the one on the south side of the paving. * * * She walked along at an ordinary gait. * * * A car was coming from the west, and the car, as it came across the intersection, kind of wiggled around,--they call it shimmying, I guess. It headed right into the curb where the little girl was, just ready to step onto the sidewalk at the south and east corner."

He says, "I didn't take my eyes off of her from the time she stepped onto the street until she got across the street." Also, that the car, after it struck her, ran 100 to 105 feet; that the right fender and wheel struck the child. He says that one of the wheels of the automobile scraped the curb when they first hit her; that the body was rolled right along the curb between the wheels on the right side of the car and the curbing; that he examined the tracks at that time, and noticed them afterwards; that they were right along the curb. He thought there was a white tire mark on the curb where the tire hit it. Drake's companion, Fox, says:

"The first thing I saw, I looked under the car that she was driving, and saw the little girl tumbling in the mud, and I judge it drug her about 15 feet. As near as I could tell, it was right at the crosswalk when she was struck. I didn't see her until after I saw her whirling under the car."

He says that, when he saw the little girl's body whirling, it was "right along against the curb, as near as she could be." Defendant and her companion (a niece) testified, in substance, that, as they approached the intersection, they looked in each direction; that there was another car approaching from the east, and the first they saw of the plaintiff was when she came from behind the other car on the other side of the street. The niece says:

"This little girl came from behind the other car. She was traveling fast. She was running. She ran directly in front of my aunt's car. She was about two feet in front of the car when I first saw her."

Defendant did not see her until her companion spoke. Defendant says that plaintiff "was just about two feet from me then. She was going south. I immediately swerved the car as quickly as possible to the curb, and tried to protect the child. * * * I shut off the power immediately after I saw the little girl run in front of my car. I steered the car up against the curb, and then ran along the curb. I couldn't say whether the car had struck the little girl before it struck the curb or not. The left-hand fender struck the little girl. * * * There...