Swan v. Dailey-Luce Auto Co.
| Decision Date | 08 February 1938 |
| Docket Number | 44242. |
| Citation | 277 N.W. 580,225 Iowa 89 |
| Parties | SWAN v. DAILEY-LUCE AUTO CO. et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Wayne County; Homer A. Fuller, Judge.
Action to recover damages as a result of being struck by defendants' automobile while plaintiff was crossing the principal street in the town of Lineville, Iowa, on the night of March 29, 1933. The court directed a verdict for defendants. From a judgment entered thereon, plaintiff appeals.
Reversed.
Garrett & Elson, of Corydon, for appellant.
Murrow & Miles and W. H. Tedrow, all of Corydon, for appellees.
This is the second appeal of this case; the first is reported in Swan v. Dailey-Luce Auto Company, 221 Iowa 842, 265 N.W. 143, 148. As the facts in this case are substantially identical with those involved in the case on the former appeal, we will not enter into an extended review thereof here, but for a further review thereof will refer to the facts set out therein.
At the close of plaintiff's evidence, defendants filed a motion for a directed verdict upon the following grounds: (1) That plaintiff has failed to establish any negligence on the part of defendants' driver; and (2) that he has failed to show himself free from contributory negligence.
Plaintiff a man over seventy-seven years of age, had just left a movie theater at about 10 o'clock p. m., on March 29, 1933, and walked to the street corner for the purpose of crossing the street. Before crossing, he stopped on the edge of the street under the glare of the flood lights of a filling station and looked up and down the street; he saw no car approaching from either direction and then started to walk across a 50-foot street. When he reached the center of the crossing, he continued the balance of the way on a " dog trot" without looking up. He came within one step of reaching the opposite side of the street when he was struck by defendants' automobile approaching the crossing from the north at a speed of about 20 or 25 miles an hour. At the time of the collision defendants' car was traveling on the extreme right or west side of Brown street, also called highway No. 65. This highway comes to a fork in the road at about the place where plaintiff stood when he looked north.
The record shows without dispute that the defendants' driver as he approached the crossing from the north, saw plaintiff standing on the east edge of the road 180 feet away by the lights at the filling station. The record also shows that defendants' driver had a clear view of the entire crossing while plaintiff was crossing the street.
Appellant contends that the court erred in holding there was not sufficient evidence to submit the question of defendants' negligence to the jury.
Among the acts of negligence alleged are the following: (1) That defendants' driver failed to have his car under control and failed to reduce the speed thereof so that the same could be stopped within the assured clear distance ahead; and (2) that he failed to keep a proper lookout for pedestrians who might be traveling on said highway.
Defendants' driver admits that he saw plaintiff standing on the east side of the crossing when he was 180 feet away. He then says he did not see him again until he suddenly " popped up" in front of him on the crossing. Another witness who was standing on the sidewalk was as far, if not farther away, from plaintiff than defendants' car, and he saw the plaintiff traveling across the street from the time he left the east side until he was struck on the west side of the street.
Defendants' driver does not explain his failure to see plaintiff walking across the street, although he contends that plaintiff must have seen him. There were no obstructions whatever between the crossing and defendants' car from the time he first saw the plaintiff 180 feet away and the time he struck him. Therefore, if plaintiff could have seen defendants' car, it is obvious that the defendants' driver could also have seen the plaintiff. There was a statutory duty on the part of defendants' driver to look for pedestrians on the street. If he did not see plaintiff as he was crossing the street, he could not have looked, and this specific act of negligence was surely one for the jury.
The statute, Code 1935, § 5029, also required defendants' driver to drive his car at a speed not greater than would permit him to bring it to a stop within the assured clear distance ahead. If the driver of defendants' car first saw the plaintiff 180 feet away when plaintiff started to cross the street, it was his duty to reduce the speed of his car to such a rate that it could be stopped within the assured clear distance ahead.
He attempts to avoid his duty under this statute by making the bald statement that he did not see plaintiff while he was crossing the street until he " popped up" in front of him just as the collision occurred. In order to do this, the jury might have found that it was impossible for defendants' driver not to have seen him again, unless this old man leaped clear across the street so quickly that defendant was unable to see him while so doing.
The undisputed evidence shows that the entire crossing could be seen for a distance of 180 feet by the driver of an automobile traveling upon the westerly side of the center line of highway No. 65. When defendants' driver was 180 feet north of the crossing, he saw plaintiff standing under the lights of a filling station at a point about 50 feet from the west side of the street. The evidence tends to show that at about the time defendants' driver saw plaintiff on the crossing 180 feet away the plaintiff started to walk westerly across the street, and that, when he reached a point about one step from the west side of the street, he was struck by defendants' car. There is nothing in the record showing any obstructions in the roadway interfering with defendant's view of plaintiff while the latter was crossing the street.
Without discussing the matter in further detail, it is our conclusion that it was for the jury to say whether or not defendants' driver has shown a legal excuse for not stopping his car within the assured clear distance as required by statute.
That this was a jury question was determined upon the former appeal of this case, wherein we said: " Under the assured clear distance statute involved in this action, it was the court's duty under the circumstances disclosed by the evidence in this case, to have instructed the jury that, if the defendant failed to drive his car at such a speed as to enable him to bring it to a stop within the assured clear distance ahead, then the defendant was guilty of negligence as a matter of law, unless he showed a legal excuse for not complying therewith, in accordance with the meaning of ‘ legal excuse’ as hereinabove referred to." The court erred in failing to submit this question to the jury.
(2) Under the record in this case the question of the negligence of defendants' driver in failing to keep a proper lookout for plaintiff as he was crossing the street was also for the jury.
Appellant also contends that the court erred in failing to submit to the jury the question of plaintiff's freedom from contributory negligence.
The undisputed testimony shows that the plaintiff, before starting across the street, looked both up and down the street and saw no automobile approaching from the north. He then stepped off the sidewalk, walked to the center of the crossing, and then continued on a " dog trot" across the rest of the street. Plaintiff positively testifies that when he looked north he did not see the approaching car, but defendants contend that under the physical facts he must have seen it. Plaintiff at the time he looked north was standing in the glare of the lights at the filling station. He testified that:
Upon the ruling on a motion for a directed verdict, the evidence should be considered in the light most favorable to appellant. Lorimer v. Hutchinson Ice Cream Co., 216 Iowa 384, 249 N.W. 220; Albright v. Chicago, R.I. & P Ry. Co., 200 Iowa 678, 205 N.W. 462; Middleton v. Omaha & C. B. St. R. Co., 209 Iowa 1278, 227 N.W. 915; Robertson v. Carlgren, 211 Iowa 963, 234 N.W. 824; ...
To continue reading
Request your trial