Twohey v. Brown, 48528

• Decision Date: 16 November 1954
• Docket Number: No. 48528,48528
• Citation: 246 Iowa 114,66 N.W.2d 870
• Parties: George TWOHEY, as next friend of Gordon Twohey, his minor son, and James Graves, as next friend of Michael Graves, his minor son, Appellees, v. Gilbert C. BROWN, Appellant.
• Court: Iowa Supreme Court

Page 870

66 N.W.2d 870

246 Iowa 114

George TWOHEY, as next friend of Gordon Twohey, his minor son, and James Graves, as next friend of Michael Graves, his minor son, Appellees, v. Gilbert C. BROWN, Appellant.

No. 48528.

Supreme Court of Iowa.

Nov. 16, 1954.

Hall & McCarthy, Davenport, for appellant.

Filseth & Schroeder, Don A. Petruccelli, Davenport, for appellees.

SMITH, Justice.

The collision between defendant's car, driven by himself, and the motor scooter, operated by plaintiff, Gordon Twohey, and upon which plaintiff Michael Graves was a passenger, occurred October 12, 1952, at the intersection of Fourteenth and Warren Streets in Davenport, Iowa. The scooter was traveling east on Fourteenth, defendant north on Warren. There was a stop sign for travelers coming to the intersection from the south on Warren. Fourteenth is a through street.

The day is described as clear and the pavement as dry. Gordon was thirteen years old, Michael twelve. Defendant concedes that plaintiffs, both being under fourteen years of age, are not chargeable with contributory negligence. Kallansrud v. Libbey, 234 Iowa 700, 703, 13 N.W.2d 684.

The case was tried to a jury. Verdict was for both plaintiffs. Defendant appeals, urging insufficiency of the evidence of negligence. The contention was presented in the lower court by motion to direct verdict made at the close of plaintiffs' case, renewed at the close of all the testimony, and by motion for judgment notwithstanding verdict. All were overruled. Three errors are assigned--each a general statement as to each ruling to the effect that there was no evidence of any negligence of defendant to warrant submission to the jury. There is in fact but one assignment.

Plaintiffs, by their respective next friends, pleaded specific negligence by failure to exercise due care, in four particulars: Failure to keep proper lookout, to have vehicle under proper control, to stop at a stop sign before entering a highway and to look both ways when entering an intersection where a stop sign has been duly posted. So far as the Record shows all were submitted without objection.

Defendant argues and cites authorities to support two brief points: 'A. A verdict should be directed when as a matter of law the record presents a case about which the minds of reasonable men cannot differ;' and 'B. A party may, on motion, have judgment in his favor despite an adverse verdict if the movant was entitled to have a verdict directed for him at the close of all the evidence, and moved therefor, and the jury did not return such verdict.'

These propositions are of course indisputable. We have however to determine whether they are applicable to the facts shown by this Record. The existence of the stop sign is stipulated. Our duty is considerably simplified by the fact no question of contributory negligence is in the case. And we must, as defendant frankly concedes, view the evidence 'in the light most favorable to the plaintiffs.'

I. Defendant argues only the insufficiency of evidence as to one specification, defendant's alleged failure to stop before entering the intersection. He contends that although both plaintiffs testified on direct examination defendant did not stop at the stop sign, their cross-examination showed they could not have seen him at that point because cars were parked on the south side of Fourteenth near Warren Street which blocked their view.

Defendant and the occupants of his car testified unequivocally that he did stop. Defendant argues this testimony was undisputed because the testimony of plaintiffs on direct was so weakened by their testimony on cross-examination. But this is not all. Defendant himself testified that when he looked west he 'could see 250 or 300 feet probably.' If before or upon entering the intersection he could see that distance, it would seem fair to argue plaintiffs had the same view of his movements. The duty of the jury was to weigh all the evidence.

Plaintiff Michael Graves testified: 'I told Gordon a car was coming and Gordon slowed down and the car didn't stop for the sign and then that's all I know.' He also said: 'I first noticed the approaching car from Warren Street when we got...