Swan v. Dailey-Luce Auto Co.

• Decision Date: 30 September 1938
• Docket Number: 44242.
• Citation: 281 N.W. 504,225 Iowa 89
• Parties: SWAN v. DAILEY-LUCE AUTO CO. et al.
• Court: Iowa Supreme Court

281 N.W. 504

225 Iowa 89

SWAN v. DAILEY-LUCE AUTO CO. et al.

No. 44242.

Supreme Court of Iowa.

September 30, 1938

Appeal from District Court, Wayne County; Homer A. Fuller, Judge.

Supplemental opinion.

For original opinion, see 277 N.W. 580.

Garrett & Elson, of Corydon, for appellant.

Murrow & Miles and W. H. Tedrow, all of Corydon, for appellees.

PER CURIAM.

The petition for rehearing is overruled with the following supplement:

Appellees contend that we misconstrued the record in assuming that appellant walked half way across the street before he started on a " dog trot." One of the witnesses said: " After I first saw Mr. Swan I noticed him stop there and didn't pay any more attention to him. * * * The second time I looked at him * * * Mr. Swan was in the neighborhood of the middle of the Street, in a dog trot."

Assuming, however, that he started on a dog trot immediately, we think it immaterial when he commenced to trot because the record shows that before he started across the street he looked both ways and saw nothing. The appellant said: " When I stood there and I looked up and down the street I did not see an automobile anywhere. * * * It was light there at that time because the filling station had a row of lights all around it and there was a street light there. I was practically under the street light. I was within the large circle of lights made by the filling station. When I looked up north and south * * to see if there was anything coming I saw nothing. If there had been a car within the lighted area around this station, I think I would have seen it."

According to some of the evidence appellees' car at that time was about 180 feet away. Appellant was an old man. It was a dark and cloudy night. Therefore, if we assume that he started across the entire street on a dog trot, it would not affect the result, because the record shows that he came within one step of the opposite side of the street before he was struck.

We cannot say as a matter of law that an old man, on a dark and cloudy night, after looking up and down the street and seeing no automobiles in sight, was guilty of contributory negligence simply because he proceeded across faster than a walk.