Walmer-Roberts v. Hennessey, 33547.

• Decision Date: 15 March 1921
• Docket Number: No. 33547.,33547.
• Parties: WALMER-ROBERTS v. HENNESSEY.
• Court: Iowa Supreme Court

191 Iowa 86

181 N.W. 798

WALMER-ROBERTS

v.HENNESSEY.

No. 33547.

Supreme Court of Iowa.

March 15, 1921.

Appeal from District Court, Harrison County; Earl Peters, Judge.

This is an action at law for injuries claimed to have been suffered by the plaintiff by reason of being struck by an automobile driven by the defendant. The jury returned a verdict in favor of the plaintiff, and the defendant appeals. Affirmed.Robertson & Havens, of Logan, for appellant.

Kennedy, Holland, De Lacy & Horan, of Omaha, Neb., and Frank E. Northrop, of Council Bluffs, for appellee.

FAVILLE, J.

The accident in question occurred in the forenoon of Monday, December 16, 1918, on Broadway, in the city of Council Bluffs. Broadway is a street running east and west, and Pearl street runs north and south, and terminated in Broadway. Each of said streets is about 65 feet in width from curb to curb. There are two lines of railway tracks on each of said streets. The car tracks are in the middle of the streets. The cars coming to the north of Pearl street turn as they enter Broadway to the east and to the west. Cars frequently make a stop on Pearl street near the intersection with Broadway, and then pass on a curve to the west and stop again to receive passengers, after they clear the curve and are headed in a westerly direction on Broadway. It is the custom of passengers to get on such west-bound cars at a point about 45 feet west of the center of the intersection of the two streets. At the time of the accident in question a traffic officer was stationed near the center of the intersection of the two streets. At that time a street car was approaching from the south on Pearl street, and stopped near the point of intersection with Broadway, where the switch was thrown, permitting the car to pass on the curve and pursue its course westward on Broadway. At that time there was a crowd of people, variously estimated by the witnesses at from 5 or 6 to 35 or 40, that were waiting to board the car going westward toward the city of Omaha. These people were scattered in the street between the north rail of the track on Broadway and the curb. This was the customary place where the west-bound car stopped to receive passengers.

Under such circumstances, the appellant approached the street intersection, driving westward on the north side of Broadway. He was driving a Hudson Super-Six automobile, weighing 3,800 pounds and containing five passengers at the time. As he approached the intersection of the two streets and when at a place about 40 feet east of the center of the intersection where the traffic officer stood, he sounded his horn, which attracted the attention of the officer, who thereupon signaled the appellant to proceed westward with his car. At that time the appellant's car was traveling at about 10 miles an hour. The traffic officer testified that in signaling the appellant to go westward he pointed to the center of the street where the car tracks were, and testifies that there was no obstruction to the traffic at that point. As the appellant proceeded westward with his car, the appellee, with others who were about to board the street car, was in the street between the north rail of the street car tracks and the curb. After receiving the signal from the traffic officer, the appellant drove his car straight on westward on Broadway, in a course toward where the crowd of people was congregated, awaiting the approach of the street car. At that time the appellee was facing toward the west, and was standing about 2 or 2 1/2 feet from the north rail. She was struck by the appellant's car, and thrown to the pavement and injured.

At the instant of the collision, the appellant was driving his car at a slow rate of speed, estimated by the witnesses at from 2 to 5 miles an hour. The evidence to this point is practically without dispute in the record. There is, however, a sharp conflict with regard to just what occurred at the instant of the collision. It is the contention of the appellant, supported by witnesses who were with him in the car, that, after he received the signal from the traffic officer to pass westward, he again sounded his horn repeatedly as he proceeded westward toward the crowd of people. On the other hand, the traffic officer testified that the appellant gave but the one blast of the horn, which was when he was about 40 feet from the officer and the appellee, and other witnesses testified that they heard no sound of the horn of the appellant's car as he moved westward toward the crowd.

It was also the contention of the appellant, supported by his witnesses, that as he approached the crowd the appellee stepped backwards directly in front of the appellant's automobile, and was struck by the fender. On the other hand, the appellee and a lady with whom she was talking, and the traffic officer testified that the appellee did not change the position of her feet or take any step as the automobile approached, but merely turned her head.

Again it was the contention of the appellant, supported by his witnesses, that his automobile merely pushed the appellee to the pavement, and that the automobile did not pass over her, while it was the contention of the appellee and witnesses in her behalf that the left front wheel of the automobile ran over the right foot and ankle of the appellee.

We have not attempted to review in detail the testimony of the several witnesses, but merely to outline such of the facts in the case as are essential to the determination of the questions before us.

At the outset, we are confronted with 49 errors relied upon for a reversal, which, however, are somewhat condensed in the propositions argued by counsel for appellant.

[1][2] I. Some time after the injury, the appellee was attended by a physician, who testified upon the trial in regard to the physical condition of the appellee. During the trial three physicians were appointed by the court as a commission to examine the appellee, and did so, and were all witnesses. The appellee testified that before the time of the injury she had been a well and strong woman, and that immediately after the injury she had ailments, some of which existed at the time of the trial.

Error is predicated upon the admission of the medical testimony. A physician testified in behalf of the appellee that he was called to treat the appellee professionally in May following the accident of December, and continued to treat her until some time in July; that he found her in a nervous condition, and that she had tenderness and swelling on her right side; and that she seemed to have some trouble with her female organs when he first examined her. Each of the physicians composing the commission that examined her during the trial testified that at that time there existed some diseased condition of the pelvic organs. All of these witnesses testified to the general effect that an accident might have caused this condition of the appellee's female organs, but that such condition could have been brought about by other causes. They testified in substance that various things could have caused the condition which they described; that it might have been caused by an injury or by a miscarriage, or something of that kind, and that such a condition might exist in a married woman whether she had been in an accident or not. The appellee did not consult any physician about the condition of her female organs until about a week after her marriage, which occurred in May, 1919. Upon this situation of the evidence, it is the contention of the appellant that:

“The fact that the plaintiff claims in her testimony that she never had been sick a day before the accident, and had never had any trouble with her female organs before that time, but immediately began to have pain and trouble with them after the accident, which continued up to the time of the trial, in the light of all the other facts and circumstances shown in the record is insufficient to prove that the disease of her female organs that Dr. McColm testifies he found in May, 1919, after she was married, and the condition of her female organs and nervousness of which there were some symptoms at the time of the trial, were the result, or probable result, of any injury or injuries received by her in said accident.”

Appellant relies upon our holding in Fleming v. Chicago, R. I. & P. Ry., 153 Iowa, 386, 133 N. W. 751. This was an action for negligence in obstructing a stream whereby premises were flooded with water, and it was alleged sickness resulted to an inhabitant of the premises. The evidence conclusively showed that this person was afflicted with tuberculosis for some months prior to the flooding of the premises. She had been described as being “in the last stages of consumption.”

We reviewed the evidence, and held that it was too uncertain and speculative to support a finding that the defendant's negligence caused increased suffering to the patient by the aggravation of the disease. We said: “Cases involving personal injury, present a somewhat different question.” We are still inclined to this view, and further comment seems unnecessary. Such evidence in personal injury cases on proper questions has been too long recognized by this court to now require further review or discussion. See Sachra v. Town of Manilla, 120 Iowa, 562, 95 N. W. 198;Sever v. M. & St. L. Railway, 156 Iowa, 664, 137 N. W. 937, 44 L. R. A. (N. S.) 1200, and many cases cited therein.

[3] II. It is claimed that the court erred in admitting in evidence certain ordinances of the city of Council Bluffs regulating the movement of automobiles in said city. Section 30 of said ordinances had reference to the rate of speed of automobiles. The record shows that on the defendant's motion for a directed verdict, the court sustained the same in part, and expressly withdrew from the consideration of the jury all grounds of negligence alleged in plaintiff's petition respecting excessive rate of...