Webster v. Luckow

• Decision Date: 05 February 1935
• Docket Number: 42532.
• Citation: 258 N.W. 685,219 Iowa 1048
• Parties: WEBSTER v. LUCKOW.
• Court: Iowa Supreme Court

258 N.W. 685

219 Iowa 1048

WEBSTER v. LUCKOW.

No. 42532.

Supreme Court of Iowa.

February 5, 1935

Appeal from District Court, Sac County; R. L. McCord, Judge.

Action for damages for injuries resulting in the death of plaintiff's decedent, which it is alleged were caused by defendant's negligence. The case was submitted to a jury which returned a verdict in favor of the defendant. From a judgment on such verdict, the plaintiff appeals.

Reversed and remanded.

ALBERT and RICHARDS, JJ., dissenting.

Salinger, Reynolds & Meyers, of Carroll, for appellant.

Malcolm Currie, of Sac City, and Whitney, Whitney & Stern, of Storm Lake, for appellee.

DONEGAN Justice.

The plaintiff in this case, as administrator of the estate of his deceased son, Clarence John Webster, brought this action to recover damages because of the death of such son, which it is claimed was caused by the negligence of the defendant. Briefly, the facts of the case are that the decedent, a 10 year old boy, together with several other children, was walking westward on his way home from school along a graveled road, and the defendant approached said children in his Ford model A automobile from the rear traveling in the same direction. As defendant reached a point estimated by him at a block and a half to two blocks from the group of children, he testified that he sounded his horn twice in immediate succession, and that thereupon the children, who were spread out over the road, separated, one portion of the group traveling near the edge of the traveled portion of the road on the south side and the other portion of the group traveling in a like position on the north side of the traveled portion of the road; that there was a space of approximately 12 to 15 feet between the two groups; that defendant at the time he first noticed the children and sounded his horn was traveling at from 30 to 35 miles an hour, and as he came nearer to them he slowed down to approximately 15 miles per hour; that, as he reached the two lines of children on opposite sides of the road and was passing between them, the decedent suddenly ran out from the south side of the road directly in front of defendant's car; and that defendant was unable to stop the same before the decedent was struck. There is some testimony on the part of the plaintiff's witnesses that they did not hear the horn until after they had heard the noise of the car approaching, and that the horn was not sounded until the car was within about two car lengths of the group; there is also testimony on the part of the plaintiff's witnesses tending to show that the decedent ran northwesterly from the south side of the road toward the north side of the road, and that, when he had reached a point near the edge of the traveled portion of the north side of the road, he turned and ran southwesterly toward the south side of the road. This difference in the evidence, however, does not affect the questions that are involved in this case. The case was tried and submitted to a jury, which returned a verdict in favor of the defendant. A motion for new trial and exceptions to the instructions were filed in due time and overruled by the court, and judgment entered on the verdict. From such judgment the plaintiff appeals.

I.

The first and admittedly most important question involved in this appeal concerns the court's instructions as to the alleged negligence of the defendant. Instructions 13 and 14 given by the court, and of which complaint is here made, are in part as follows:

" In this connection you are told that the driver of a motor vehicle upon the public highway must drive his car carefully and keep a lookout for persons walking in the highway, and exercise ordinary care to avoid striking them and that such duty implies the duty upon his part to see what is in plain view. The driver of an automobile approaching and attempting to pass children walking upon the highway ahead of him is bound to know that children do not ordinarily exercise the same degree of prudence for their own safety as would reasonably be expected of persons of mature judgment and experience; and in this case if there was anything about the actions of the deceased, or of the group of children of which he was a part, which the defendant saw, or in the exercise of ordinary care, should have seen, which should have challenged his attention, as a reasonably prudent person, and warned him that he might reasonably expect any of such children to run into the path of his car, it was his duty to be on the alert and operate his car at such speed and have it under such control as to avoid striking any of such children who should so run into the path of the defendant's car."

" The defendant claims that as he approached the group of children walking the highway ahead of him, some of said children went to the south side of the highway and others went to the north side of the highway, leaving a path between those on the south side and those on the north side twelve to fifteen feet in width; that as the defendant attempted to pass said group of children in said path the deceased suddenly and without warning stepped or ran from the south side of said highway directly into the path of his car at a time when it was too late for him, in the exercise of ordinary care, to avoid striking the deceased.

In this connection you are told that if the deceased was, just prior to the happening of the accident, in a place of safety, and there was not anything about his actions or the actions of the group of children of which the deceased was a part, which should have challenged the defendant's attention, as a reasonably prudent person, and warned him that he might reasonably expect any of said children to step or run into the path of his car, he had a right to assume that the deceased would remain in a place of safety until the automobile had passed him, and was not legally bound to know or anticipate that the deceased would attempt to cross the highway ahead of the defendant's on-coming car at a time when it would be too late for the defendant, in the exercise of ordinary care, to avoid striking him."

It is urged that instruction 13 imposed no duty to use care on the defendant unless there was something about the actions of the deceased, or of the group of children of which he was a part, which the defendant saw, or in the exercise of ordinary care, should have seen, which should have challenged his attention, as a reasonably prudent person, and warned him that he might reasonably expect any of such children to run into the path of his car, whereas the jury should have been told that it was the duty of the defendant to anticipate that a child of the tender age of the decedent could not be expected to act as a mature person but, on the contrary, should be expected to act as a child of like age. Likewise, the complaint against instruction 14 is that it told the jury affirmatively that the defendant would not be guilty of negligence if, just prior to the accident, the decedent was in a place of safety and there was not anything about his actions or the actions of the group of children of which he was a part which challenged the defendant's attention as a reasonably prudent man and warned him that he might reasonably expect any of said children to step or run into the path of his car, and that he had a right to assume that the deceased would remain in a place of safety until the automobile had passed him.

Appellant admits that, so far as our cases involving injuries to children of a tender age are concerned, this court has followed the rule set out in the instruction to the effect that, if the driver of the automobile, in approaching a child, sees it in a place of safety, he has a right to assume that it will not leave such place of safety and go into the path of his car, and that, if such child, without doing anything to indicate his action, suddenly leaves the place of safety and comes in contact with the automobile, the driver cannot be held to be negligent in failing to anticipate such action on the part of the child. See Bishard v. Engelbeck, 180 Iowa, 1132, 164 N.W. 203; Borland v. Lenz, 196 Iowa, 1148, 194 N.W. 215; Brekke v. Rothermal, 196 Iowa, 1288, 196 N.W. 84; Faatz v. Sullivan, 199 Iowa, 875, 200 N.W. 321; Radenhausen v. C., R.I. & P. Ry. Co., 205 Iowa, 547, 218 N.W. 316; Klink v. Bany, 207 Iowa, 1241, 224 N.W. 540, 65 A.L.R. 187; Kessler v. Robbins, 215 Iowa, 327, 245 N.W. 284.

Appellant contends, however, that this court, in the recent case of Allen v. Des Moines Railway Company, 253 N.W. 143, has indicated its intention to depart from the strictness of the rule which has heretofore been followed, and to adopt the rule sanctioned by the courts of Pennsylvania and other states, which holds that, when the driver of an automobile sees children of tender age upon the highway or in close proximity thereto, he is bound to realize that such children do not use the prudence and caution of mature persons, but that, on the contrary, they may, without any previous indication of such action, suddenly dart into the pathway of his car. While, in our opinion, the Allen Case does not indicate an intention to depart from the rule which we have hitherto followed, it does, perhaps, place a limitation on such rule to the extent that a person approaching such child would not have a right to ignore the apparent fact that such child's attention was otherwise occupied and that it might not realize the danger of going into the pathway of the oncoming car. In the case of Johnson v. Abbott's Alderney Dairies, 295 Pa. 548, 145 A. 605, which was quoted by us with approval in the case of Allen v. Des Moines Railway Company, 253 N.W. 143, 144, it was said that, " when children are on the street, or in ...