Wimer v. M. & M. Star Bottling Co.

• Decision Date: 17 December 1935
• Docket Number: 43061.
• Parties: WIMER v. M. & M. STAR BOTTLING CO.
• Court: Iowa Supreme Court

264 N.W. 262

221 Iowa 120

WIMER v. M. & M. STAR BOTTLING CO.

No. 43061.

Supreme Court of Iowa.

December 17, 1935

Appeal from District Court, Mahaska County; J. G. Patterson, Judge.

An action for damages resulting from an automobile accident. The material facts are stated in the opinion. There was a verdict and judgment for plaintiff. Defendant appeals.

Reversed.

Miller, Miller & Miller, of Des Moines, and Devitt, Eichhorn & Devitt, of Oskaloosa, for appellant.

McCoy & McCoy, of Oskaloosa, for appellee.

ANDERSON, Justice.

This action grows out of an automobile accident in which plaintiff's decedent was injured to such an extent that he died. The accident occurred about 9 a. m. on November 17 1933, on what is known as the " Stewart corner" about two miles east of the town of Taintor, Mahaska county Iowa. The intersection in question is of a road running north and south and one running east and west; the driving surface on each being approximately thirty feet wide. The east and west road makes a jog at the intersection with the north and south road; in other words, the center line of the east and west road, if extended across the intersection, would join the south line of the east and west road after it crosses the north and south road. The plaintiff was driving a Chevrolet coupéin a westerly direction on the east and west road; the defendant's employee was driving a Ford truck in a northerly direction on the north and south road. The east and west road upon which plaintiff was driving was practically level. The north and south road had a slight incline extending south from the intersection about ninety feet. The only eyewitnesses to the accident were the driver of the defendant's truck and a man who was accompanying him. From the testimony of these two witnesses it appears that the defendant's Ford truck was being driven north on the east or right side of the north and south road at a speed of approximately twenty-five miles an hour; that the plaintiff's Chevrolet was being driven west on the east and west road at a speed of forty to forty-five miles per hour; that upon approaching the intersection the plaintiff's Chevrolet made a left turn into the north and south road without any reduction of speed; that in making the said left turn the plaintiff failed to turn the corner near the right-hand side of the road and failed to pass to the right of and beyond the center of the intersection before turning. In other words, he cut the corner and made the left turn very close to his left-hand corner of the intersection. The defendant's employee was driving the defendant's truck at this time slightly over the hill at the south end of the incline on the right or east side of the highway. As the Chevrolet made the turn as indicated, testimony shows that he was on his left side of the north and south highway and immediately facing the defendant's truck. It appears from the testimony that the driver of the defendant's truck in this emergency, turned to his left in an effort to avoid a collision. The plaintiff's Chevrolet turned to his right, and the vehicles came into a collision at or near the center line of the north and south highway and about thirty-seven feet south of the center of the intersection. There was a scar or gouged place in the highway where the collision evidently occurred, and the vehicles came to a rest after the collision nineteen feet south of this scar or gouged place, and this gouged place was nineteen feet south of the southwest corner of the intersection, so that when the vehicles came to a stop after the collision they were practically at the south line of the east and west road. The photographs which are made a part of the record show that the right front wheel of the truck was hooked in behind the left front wheel of the Chevrolet, and the vehicles apparently remained in this situation from the time of the collision until they came to a stop at the point we have indicated. The collision resulted in the death of Perry C. Wimer, the driver of the Chevrolet coupé. There is testimony as to the tracks made by the wheels of the vehicles immediately before the collision, but these tracks simply corroborate the statement of the situation and the course of the vehicles as we have just indicated. At the close of the testimony showing the foregoing facts, the defendant moved the court for a directed verdict upon the grounds: First, that the decedent, immediately prior to the accident, placed himself in a position of danger which could have been seen and appreciated by him, and that such action constituted contributory negligence barring recovery; second, that the decedent, just prior to the collision, entered the intersection and turned to the left into the north and south highway without first seeing that there was sufficient space to make such movement in safety, and that such action constituted contributory negligence barring recovery; third, that the decedent entered the intersection in question at an excessive rate of speed and into the path of the defendant's truck, and that such action constituted contributory negligence; fourth, that the decedent failed to pass to the right and beyond the center of the north and south highway before turning to the left, and that such action was a violation of the statute and constituted contributory negligence; fifth, that the decedent did not reduce the speed of his Chevrolet and did not have the same under control and could not stop his car within the assured clear distance ahead, which constituted contributory negligence; sixth, that the decedent in changing the direction of his car from the east and west road into the north and south road cut the corner and failed to pass to the right and beyond the center of the intersection, and that the physical facts as well as the undisputed testimony shows that the collision would not have occurred but for these acts of the decedent, and that such acts constituted contributory negligence; seventh, that the evidence fails to show that the driver of the defendant's truck was guilty of any acts of negligence which were the proximate cause of the accident, and that plaintiff has failed to...