Thomas v. Charter

• Decision Date: 05 April 1938
• Docket Number: 43933.
• Citation: 278 N.W. 920,224 Iowa 1278
• Parties: THOMAS v. CHARTER.
• Court: Iowa Supreme Court

278 N.W. 920

224 Iowa 1278

THOMAS v. CHARTER.

No. 43933.

Supreme Court of Iowa.

April 5, 1938

Appeal from District Court, Linn County; F. O. Ellison, Judge.

Action at law for damages alleged to have been caused by the negligence of the defendant in the operation of an automobile, whereby plaintiff's intestate received injuries resulting in his death. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

Carl F. Jordan, of Cedar Rapids, for appellant.

John D. Randall and R. S. Milner, both of Cedar Rapids, for appellee.

DONEGAN, Justice.

On the 16th day of July, 1935, between 2 and 3 o'clock in the afternoon, the plaintiff's intestate, Raymond Lloy Thomas, was operating a motorcycle northward on highway No 11, which runs along the city limits of the city of Cedar Rapids, Linn county, Iowa. Thomas was accompanied by a young lady who was riding on the rear of the same seat occupied by him. At a point approximately 700 feet south of where the accident here involved occurred, there is an ascending grade toward the northward, as the highway ascended a viaduct over some railroad tracks, and the highest point of this viaduct is approximately 635 feet south of the point where the collision here involved occurred. From this high point of the viaduct there is a five per cent. descending grade northward to the point of the collision. Highway No. 11 is a paved highway, the paved portion being 18 feet wide. At the bottom of this descending grade to the northward there is a side road or driveway coming onto the paved highway from the west. This side road or driveway does not intersect the paved highway at right angles, and does not extend eastward beyond the paved highway. It comes into the paved highway at a sharp angle from the southwest, and it is necessary for automobiles traveling northward on the paved highway to make a very sharp turn in order to leave the highway and proceed into this side road or driveway. On the east side of the pavement, opposite the entrance of this side road or driveway, there is a garage which stands some distance back from the pavement. Between this garage and the pavement there are two gasoline pumps and the surface has been covered with gravel. It is claimed by the plaintiff that, as his decedent came over the viaduct and started down the grade to the northward he was preceded by the automobile driven by the defendant; that, when the defendant reached a point about opposite the side road leading to the southwest, he turned his automobile to the right and onto the gravel surface in front of the garage; that, without signal or warning of any kind, he then turned toward the westward and across the pavement in front of the plaintiff's decedent; and that, without any fault on the part of plaintiff's decedent, the motorcycle on which he was riding came in contact with the defendant's automobile while it was crossing the paved highway, and plaintiff's decedent received injuries from which he died within a few hours thereafter.

It is the claim of the defendant, on the other hand, that he descended the grade from the high point of the viaduct to the northward, driving at a reasonable rate of speed on the east half of the paved portion of the highway; that his destination was a house on the side road or driveway to the left of the pavement; that he slowed his car down to a speed of approximately 3 miles per hour, gave a signal by extending his left arm outward, looked backward up the grade toward the south, and saw no vehicle of any kind between him and the high point of the viaduct; that, without proceeding off of the east edge of the pavement at any time, he turned his car toward the left and across the highway in order to make the turn into the side road or driveway; and that, when his automobile had reached a point where the left front wheel was off of the west edge of the pavement and the right front wheel was about on the edge of the pavement, the motorcycle driven by plaintiff's intestate, which was traveling at a speed of 60 to 70 miles an hour, ran into the left side of his automobile, up the left front fender and over the hood thereof, turned a complete somersault, and landed on top of the plaintiff's intestate about 20 feet beyond and to the northward of the automobile.

The case was tried to a jury which returned a verdict for the plaintiff in the sum of $10,175. A motion for a new trial was overruled, on condition that the plaintiff remit $3,000 of the verdict rendered, and, upon plaintiff filing such remittitur, judgment was entered in favor of the plaintiff for $7,175. From this judgment and from all adverse rulings, the defendant appeals.

Appellant has set out and argued 41 alleged errors upon which he relies for reversal. His brief and argument contains 150 pages and his reply brief and argument contains 63 pages. Manifestly, this court cannot consider and discuss each of the alleged errors relied upon for reversal in detail.

I.

Appellant's first allegation of error is, that the court erred in refusing to admit the testimony of a witness, W. L. Kohl, as to the speed at which the motorcycle was traveling when it passed him on the south slope of the viaduct; and his second allegation of error is, that the court erred in refusing to admit the testimony of this witness as to the speed of the motorcycle as it went down the north slope of the viaduct toward the point of the collision. The witness whose testimony is here involved was driving northward on highway No. 11 and testified that, as he was going up the south slope of the viaduct, the plaintiff's decedent passed him driving the motorcycle. The witness was asked how fast, in his opinion, the motorcycle was going when it passed him and on objection of the appellee that the question was too remote, incompetent, irrelevant, and immaterial, he was not allowed to answer. The witness further testified that, from where the motorcycle passed him to the scene of the accident, the motorcycle was not out of his sight. He was then asked how fast the motorcycle was going as it went down the north slope of the viaduct toward the point of the collision, and, upon objection that the question was too indefinite, not interrogating the witness as to any relative point, merely the north slope, and might be anywhere from the point he was talking about clear down to Schrimper's garage, he was not allowed to answer. To a later question, however, which asked how fast the motorcycle was going immediately before the crash, the witness, without objection, answered that it was going 70 miles or better. The trial court has considerable discretion in determining whether or not evidence as to speed at points more or less remote from the point of a collision should be admitted, and, where there is nothing in the question to indicate that the speed at a point some distance from the point of a collision has some connection with the speed at the...