Whitman v. Pilmer, 40741.

• Decision Date: 16 December 1931
• Docket Number: No. 40741.,40741.
• Citation: 214 Iowa 461,239 N.W. 686
• Parties: WHITMAN v. PILMER ET UX.
• Court: Iowa Supreme Court

214 Iowa 461

239 N.W. 686

WHITMAN

v.PILMER ET UX.

No. 40741.

Supreme Court of Iowa.

Dec. 16, 1931.

Appeal from District Court, Polk County; Joseph E. Meyer, Judge.

Action by Lee Whitman, administrator of the estate of Anna Whitman, deceased, against James Pilmer and Mrs. James Pilmer to recover for the death of plaintiff's intestate resulting from defendants' automobile striking her while she was crossing a street. Verdict and judgment for plaintiff. Defendants appeal.

Reversed.

STEVENS, ALBERT, and KINDIG, JJ., dissenting.C. C. Putnam and Guy S. Calkins, both of Des Moines, for appellants.

Lehmann, Hurlburt & Hossfeld, of Des Moines, for appellee.

MORLING, J.

Intestate's residence was on the west side of Seventh street, near the middle of the block. The public sidewalk, which was 6 feet wide, was nearly 17 feet east of the house. East of the sidewalk was a 10-foot, 4-inch parking. The paving east of the curb was 32 feet wide. On the south side of the house was a driveway 9 feet 6 inches in width. The accident occurred about 2:30 in the afternoon of September 1, 1928. At that time the car of decedent's son was parked next to the west curb of the street and north of the driveway. North of this car were parked one or more other cars. The car of Mrs. Lamoreaux was parked against the east curb opposite the Whitman house. Decedent left her house to cross the street and get in the Lamoreaux car. Decedent's son Charles, who was standing in a front door of decedent's home, testified: “She stepped into the driveway and walked out to the street. As she did so she was on the north edge of the driveway and turned her head and looked up and down the street. My car was parked above the north edge of the driveway. She walked in front of it, looking to the north first and then to the south. A car was coming from the south. Mother stood and let that car go by from the south and started to walk across the street, and was almost to the center of the street when someone screamed. It was Mrs. Pilmer who screamed. I first saw the car Mrs. Pilmer was driving when it passed in front of my view almost opposite where I was standing. * * * She (the decedent) went practically straight east, and to the best of my opinion mother had reached the center of the street. * * * Was slightly past the center of the street to the best of my knowledge, and I would say Mrs. Pilmer's car was 16 to 22 feet from her when I heard the scream. * * * I would say she wasn't going over 20 miles an hour. Her car continued on south after I heard the scream. It struck my mother. It had not slowed up any in the interval. The brakes had never been applied in the interval. The bumper of the car struck mother on the right leg. My mother threw her arm out, hitting the left lamp and the side of the radiator with her arm. * * * It was the left end of the bumper that hit her. * * * She was past the center of the car when she was struck. The car went on I should say 10 or 12 feet before the brakes were applied, and when the brakes were applied the car stopped immediately. * * * My mother waited for a car to go by going north. * * * No other car went north until after the accident. * * * I have no idea how many people were in the car that went north before the accident. I was watching my mother to see if she saw that particular car; she was waiting for that car to go by. I saw her stop and watch the car. * * * My car was very close to the curb. If parked exactly against the curb it would be 5 1/2 feet out in the street; the fenders would. My mother stepped somewhere from 2 to 4 feet out in the street. * * * The best of my knowledge is she was past the center of the street (when struck) I would say one-half the width of a car east of the middle of the street. * * * Had my mother taken one more step she would have been entirely out of the way. * * * I couldn't swear and don't want to swear that the scream came from Mrs. Pilmer, but rather that it came from that direction. * * * To the best of my judgment she (mother) was in the same place she was struck after the scream and didn't take another step. She stopped and turned around to the north. She turned to her left and went to look west and the car struck her at that time. * * * The bumper caught her in the right leg. * * * From where I stood I could look to the southeast over my car by the tree and by the pole and actually saw her hit the left or east lamp, east side of the car. * * * As she turned to the left she put her right leg to the north evidently because that it (is) where the car hit her on the right leg on the side. * * * She hit on the left * * * side of the car, the left lamp and fender. I didn't know the right lamp was bent and the left wasn't bent at all. * * * As she stepped out there 2 or 3 or 4 feet from the end of the driveway and stood still she looked north first, then to the south. That is all I saw her look until she started across east. There was a car that went by her from the south going north. As soon as that car had gone north she started on across the street. * * * There is a space of 7 or 8 feet between the north side of our house and the south side of the house immediately north of us. When I first saw the Pilmer car it was approximately in line with that house, the south side of that house. * * * I do not know how far from my mother the Pilmer car was when she looked to the north, nor where the Pilmer car was when my mother stopped before she looked either north or south.”

Mrs. Pavlik, who was looking out of a window of the next house south, testified:

“My attention was attracted to the street by hearing a lady scream. * * * When I heard the scream and looked Mrs. Whitman was a little over half ways across the street. the east side of the automobile struck her. She was then about even with the driveway. * * * When the automobile came to a stop and the accident was over, Mrs. Whitman was south of me almost even with my car, in front of my house. * * * The driver of the car, after she screamed, threw her hands in the air and screamed again.

Q. Did you see her hands in the air? A. Well, as to that, I wouldn't want to say just to that. * * * I was talking to this woman just as they had taken Mrs. Whitman in and I says, why didn't you run into the pavement, into the curbing, or into some of these cars? She said, all I could do, I saw I was going to hit her, I threw my hands in the air, screamed, closed my eyes and set my brakes. I didn't want to ruin my new Buick car. * * * I saw the car before it hit her. Mrs. Whitman wasn't exactly across the street but she was going across to get in the car. * * * I just couldn't say how far away the car was when I saw it going towards her after I looked up, having heard the scream, because everything was done so quick. * * * The first was a scream. I wouldn't say whether the next time was a screech of a brake or scream. At that time I should judge she was about 2 feet over the middle of the street. * * * The east side of the car hit Mrs. Whitman. * * * I could...