Vass v. Martin
| Decision Date | 15 October 1929 |
| Docket Number | 40003 |
| Citation | 226 N.W. 920,209 Iowa 870 |
| Parties | HELEN VASS, Administratrix, Appellant, v. CLAY MARTIN, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 14, 1930.
Appeal from Davis District Court.--GEORGE W. DASHIELL, Judge.
Action to recover damages for the death of plaintiff's intestate. The material facts are fully stated in the opinion. Judgment was entered in favor of the defendant upon a directed verdict in his behalf. Plaintiff appeals.
Reversed.
Gilmore & Moon, Jones & White, and Miller, Kelly, Shuttleworth & McManus, for appellant.
Taylor & Taylor and T. A. Goodson, for appellee.
STEVENS J. ALBERT, C. J., and DE GRAFF, MORLING, and WAGNER, JJ concur.
The accident resulting in the death of Ralph Vass occurred on the evening of July 3, 1925, a few miles north of Bloomfield. The place of the accident was a hillside, from one third to one half of the way from the summit. F. D. Murphy, who was driving a Ford Tudor southward, on the right-hand side of the highway, struck an obstruction, and his car skidded in such a way as to turn almost completely around. In making the turn, the car was turned on its left side, with the front left wheel just over the grader ditch by the side of the highway. The car was apparently lying fronting slightly northwest. The lights were left burning. The roadside west of the grader ditch was grown up with sweet clover, so that the rays of light from the Ford must have been, to some extent at least, obscured. Unable to adjust his car so that he could proceed on his way to Bloomfield, Murphy called a garage, and two men soon arrived in a truck, to assist him in adjusting the Ford. The two men were Shelton, who testified as a witness in appellant's behalf, and Ralph Vass, who was killed when struck by appellee's car. The truck was stopped alongside of the Ford, pointing at a slight angle toward the northeast. There is some uncertainty in the evidence as to the exact distance between the Ford and the truck. Measurements made the following morning tended to show the distance to have been 7 feet and 7 inches. Because of a rain the preceding evening, the tracks of the several vehicles were clearly visible, and the measurements easily made. One witness estimated the distance as 8 or 9 feet, and another as 5 or 6 feet. The accident occurred very shortly after the truck arrived. Appellee was also traveling southward, on the right-hand side of the road. The evidence does not disclose the exact position in the highway, or in relation to the vehicles standing therein, of Murphy and the two men from the garage at the time of the accident, but it does show where they were immediately before it occurred. Neither Murphy nor Shelton saw appellee's car approaching, and it is conceded that no warning was sounded. The lights of the truck and also the lights on appellee's car, a Chevrolet, were in good condition, and lighted. Appellee testified that he saw the truck some time before the accident. Apparently, he did not see the Ford until he was within 10 feet of it. At least, the jury could have so found from the evidence. Appellee drove his car between the Ford and the truck, striking all three of the men in the road, killing Vass, severely injuring Murphy, and inflicting some injuries upon Mr. Hambleton, a farmer residing near by, who had gone to the scene of the accident before the service truck arrived. Appellee's car struck both the truck and the Ford. His right fender was severely damaged, and in part torn off. The injury on the left side was slight, and near the front of the automobile.
The court, at the conclusion of all the testimony, on motion of the defendant, directed a verdict in his favor. The correctness of this ruling presents the only question for decision. It is true that appellee also contends that the evidence wholly failed to charge him with negligence. We deem it unnecessary to discuss this question.
Murphy was thrown, or carried, more than 30 feet, and Vass more than 60 feet. The question of the rate of speed at which appellee's car was traveling, and as to the other grounds of negligence charged, we are agreed, was clearly for the jury. The ground upon which a verdict was directed in favor of appellee was that the deceased was guilty of contributory negligence. Testimony was introduced, tending to show that the lights on the Ford car were visible to a traveler approaching the scene of the accident, although it is conceded that they were obscured to some extent by the sweet clover growing by the side of the road. Appellee testified that he saw the truck in the highway; that the front end was slightly east of the...
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