Wilkinson v. Queal Lumber Co.
| Decision Date | 15 March 1927 |
| Docket Number | 37994 |
| Citation | 212 N.W. 682,203 Iowa 476 |
| Parties | CAROLINE WILKINSON, Appellee, v. QUEAL LUMBER COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--JOHN FLETCHER, Judge.
An action to recover damages for personal injuries received by Mrs. Wilkinson from being struck by an automobile driven by defendants. From judgment in favor of plaintiff defendants appeal.
Reversed.
Lehmann Seevers & Hurlburt, for appellants.
B. O Montgomery, for appellee.
ALBERT J. EVANS, C. J., and DE GRAFF and MORLING, JJ., concur.
The facts out of which this action grew are, briefly stated, as follows: Forest Avenue is a street in the city of Des Moines, running east and west. Twenty-fourth Street crosses it at right angles. The first-named street is 30 feet wide from curb to curb. North of Forest Avenue, Twenty-fourth Street is approximately 26 feet wide from curb to curb, and south of Forest Avenue it is about 31 feet from curb to curb. Mrs. Wilkinson lived on the northwest corner of this intersection, the house facing on Forest Avenue, and the sidewalk leading from the house to Forest Avenue, if projected, would meet said street at a point about 50 feet west of the intersection of the two streets.
About 6 P. M. on the evening of October 30, 1924, Mrs. Wilkinson had gone to a grocery store at Twenty-fourth and University for some groceries. On her return, she reached the southwest corner of the intersection made by Twenty-fourth Street and Forest Avenue. She stopped and waited for some automobiles going west to pass. She then stepped off the curb on the south side of Forest Avenue, for the purpose of crossing same. Previously she had looked and had seen no automobiles, but after she had taken five or six steps on said street, she saw appellants' car approaching from the east. It had not yet reached the intersection. She looked again, and it was nearing as she continued to cross the street. She looked for the third time, at which time the car was about upon her. She was struck by the car and carried along on the bumper, and received the injuries complained of. At the time she was struck, she was three or four steps from the north curb. She wore glasses at the time, and had on a cloak of dark material that reached to her ankles. She says that, when she started across the street, she closed her umbrella. The driver of the automobile testifies that she had her umbrella opened and was carrying it close over her head at the time he first saw her. One Peterson, a witness for appellee, testified that he drove up almost immediately after the accident, and picked up appellee's umbrella, and it was then open.
It is conceded that it was dark at this time, and that the wind was blowing, and that there was a heavy rainstorm. One witness says it was the worst rainstorm that occurred that year. Some further facts may be stated later in the opinion, but this is sufficient to give light on the principal questions discussed.
The specifications of negligence, as set out in the amended petition, are seven in number:
1. Dangerous and reckless speed, in excess of 30 miles per hour.
2. Dangerous and excessive rate of speed in view of the location, the amount of traffic on the streets, and surrounding circumstances.
3. Failure to have the automobile under control, and failure to reduce the speed to a reasonable and proper rate when approaching said crossing and intersection.
4. Failure to keep the proper lookout.
5. Failure to give any warning.
6. Failure to see the plaintiff.
7. That it was raining at the time of the accident, and that there was water on the wind shield of defendants' automobile, and that they were negligent in operating said automobile at a dangerous and excessive rate of speed, in view of this fact.
The court submitted all of these questions of negligence to the jury, and largely copied the petition and amendment of appellee in his instructions. Complaint is made of this, under the well-known rule in this state condemning such practice; but, as we are reversing this case on other grounds, we do not stop now to analyze this complaint.
As to the first ground of negligence submitted by the court, to wit, a dangerous and reckless rate of speed in excess of 30 miles an hour, the record is wholly wanting in any direct evidence from any witness in the case as to the speed at which the appellant was driving. We are furnished with a well prepared mathematical calculation, by which it is attempted to demonstrate from evidence in the case that the speed did exceed 30 miles an hour, but this calculation contains too many assumptions to be of any value whatever in determining this question. The only direct evidence of any kind in the case touching this question comes from the driver of the automobile, when he testifies that he stopped his car within the...
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