Underwood v. Oskaloosa Traction & Light Co.

• Court: Iowa Supreme Court
• Writing for the Court: EVANS
• Citation: Underwood v. Oskaloosa Traction & Light Co., 157 Iowa 352, 137 N.W. 933 (Iowa 1912)
• Decision Date: 16 October 1912
• Parties: UNDERWOOD v. OSKALOOSA TRACTION & LIGHT CO.

157 Iowa 352

137 N.W. 933

UNDERWOOD

v.OSKALOOSA TRACTION & LIGHT CO.

Supreme Court of Iowa.

Oct. 16, 1912.

Appeal from District Court, Mahaska County; John F. Talbott, Judge.

Action for damages resulting from a collision of plaintiff's automobile with one of defendant's street cars. There was a verdict for the plaintiff for $108, and the defendant appeals. Reversed.John F. & Wm. R. Lacey, of Oskaloosa, for appellant.

McCoy & McCoy and S. V. Reynolds, all of Oskaloosa, for appellee.

EVANS, J.

The accident in question occurred on September 6, 1910, at 4 p. m. on one of the principal business streets of Oskaloosa, known as High avenue. This avenue extends east and west, and street cars are operated upon it. The plaintiff in his automobile approached the avenue at right angles over C street. High avenue is 80 feet wide, and the street car track is laid upon its center line. C street is 66 feet wide. The structures on C street prevented a view east or west on High avenue, except upon near approach to its crossing. Arriving at the C street crossing on the north line of High avenue, there was nothing at the time of the accident to obstruct a clear view of High avenue either east or west. The street car in question was coming from the west. The collision resulted from the failure of the plaintiff to observe the street car. He so failed because his attention was directed in another direction, and he was looking backward, instead of forward. The petition charged various specifications of negligence on the part of the defendant, viz., that the car was operated at a reckless rate of speed; that no gong or bell was sounded; that the motorman was old and incompetent; that the car and its equipments were old and out of repair; that the motorman was negligent in failing to stop the car after discovering the peril of plaintiff, and in failing to discover such peril in time to stop the car. The trial court withdrew the specifications in relation to the competency of the motorman and the condition of the car. The other specifications were submitted to the jury.

It is the contention of appellant that the evidence did not warrant a submission of the case to the jury at all, and that a verdict should have been directed for the defendant. We give our first attention to this question. The plaintiff testified as follows: “I was running south on C street when I came to within about 60 feet of the north line of West High avenue. I saw a man on the crossing going east. When I first noticed him, he was directly in front of me. I called out to him to call his attention so he could see I was coming. Instead of quickening his speed, he rather slowed up. I went past him, and, as I passed, I turned and looked over my left shoulder, but he still kept moving on, but seemed to be muttering something. As I drove by him, I had slowed up considerably, so that he would have time to get out of my way. His peculiar actions drew my attention to him, and, when I turned my eyes in front, I was right on the street car line, and the street car was very close to me. I did not have time to quicken my speed, and it was too late to shut down. I had heard no gong or bell sounding. If I had heard a bell, I would have turned to the east or west; or stopped my car. I could have turned either east or west. I could have stopped easier than anything else, as I was running slow. I was running about 10 miles an hour. I had been looking towards High avenue until this man attracted my attention. When I first saw the street car, it was right close to me, and my front wheels were close to, if not on the street car line. The street car was virtually on me when I first saw it. I had a clear track in going into High street. I was going south on C street, which crosses High. When I first saw the fellow in my way, he was 50 or 60 feet from me. He was coming east down the High street sidewalk. He was going east on High street. He was in the crossing when I first noticed him, and I was then running about 10 miles an hour. He turned and commenced to talk. I could see from the way his mouth worked and his peculiar actions that he was not pleased. I understood from his muttering that he was not pleased with my actions. When he started in front of me, I slowed up and gave the alarm. I supposed he would quicken his speed, but he slowed up, and I slowed up and probably down to eight miles an hour. If it had not been for the trouble with this man, I would have seen the car, but he was making a disturbance and attracted my attention. He followed me down after the accident. I rather think he was drunk. He caused me to slow up. His action caused me to look at him, rather than to see whether the street was clear or not. If I had seen the car, I probably would have stopped, or I could have turned either east or west and missed it. This drunken man attracted my attention until it was too late for me to turn. When I got through with him, the car was right on me.”

Plaintiff's witness Parks testified on cross-examination as follows: “There was nothing to obstruct the view of...