Wine v. Jones
| Decision Date | 05 April 1917 |
| Docket Number | 31216 |
| Citation | 162 N.W. 196,183 Iowa 1166 |
| Parties | CELIA A. WINE, Appellee, v. C. B. JONES, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 24, 1918. Opinion appears in 168 N.W 318.
Appeal from Story District Court.--E. M. MCCALL, Judge.
ACTION for damages consequent on a collision with a motorcycle resulted in judgment for plaintiff. The defendant appeals.
Affirmed.
C. G. Lee and I. R. Meltzer, for appellant.
R. E. Nichol and John Y. Luke, for appellee.
Main Street in the city of Ames is 80 feet wide, with 54 feet paved between the curbings. It extends east and west, and in it is laid the track of a street railway, extending to that portion of the city where the Iowa State College is located. It intersects Grand Avenue, extending north and south. This street is paved 30 feet between the curbings, north of Main Street, and 38.6 feet between curbings, south of Main Street, and is the main thoroughfare to the college.
On June 20, 1914, the pavement between the car tracks at the intersection had been removed, and cinders put in its place. In the morning of that day, plaintiff, with her daughter and two children, walked north on the west side of Grand Avenue until about 20 feet south of Main Street, when they started across the avenue to the east, or northeast; and, when plaintiff was about 8 feet from the curbing, as is alleged, she was struck by defendant's motorcycle, coming from the north on Grand Avenue, and was injured. The defendant had ridden west on Fifth Avenue (a street about 216 feet north of Main Street), and turned south on Grand Avenue. The speed at which he was moving was estimated by the several witnesses at from 10 to 35 miles per hour. But two grounds of negligence are charged: excessive speed and failure to warn. The evidence was such as to carry both of these to the jury.
I. Appellant contends that the evidence established conclusively that plaintiff, by her own negligence, contributed to her injury. That she attempted to cross the street at a point other than at the regular street crossing would not alone, as a matter of law, constitute negligence. Bell v. Town of Clarion, 113 Iowa 126, 84 N.W. 962; same case, 115 Iowa 357; Finnegan v. Sioux City, 112 Iowa 232, 83 N.W. 907; Middleton v. City of Cedar Falls, 173 Iowa 619, 153 N.W. 1040; Fox v. Village of Manchester, 183 N.Y. 141 (2 L. R. A. [N. S.] 474, 75 N.E. 1116); Magaha v. Hagerstown, 95 Md. 62 (93 Am. St. 317, 51 A. 832; City of Denver v. Sherret, 31 C. C. A. 499; City of Olathe v. Mizee, 48 Kan. 435 (30 Am. St. 308, 29 P. 754). See collection of cases in note to Lerner v. City of Philadelphia, (Pa.) 21 L. R. A. (N. S.) 614, 666. A foot passenger has a right to cross a street at any point, and is not restricted to the regular crossing. Such was the ruling in O'Laughlin v. City of Dubuque, 52 Iowa 746, 3 N.W. 655, which modified an apparent holding to the contrary in the case when previously before the court. See 42 Iowa 539. Here, there is no showing that there was a street crossing other than the ordinary pavement, or that it was different at the intersection than where the plaintiff undertook to cross. Plaintiff had the same right to use the street at one point as the other, though, possibly, greater vigilance on her part might be required at points other than at the street intersection, and where people ordinarily cross. In the O'Laughlin case, the defect was in the street at a point other than at the crossing, and the contention was that, inasmuch as the city had afforded a safe way, the plaintiff ought not to recover, if injured in crossing the street elsewhere. The court held that, in the circumstances disclosed, the issue as to whether the plaintiff therein was negligent, was an issue appropriate for submission to the jury. Here, no such crossing appears to have been provided. The pavement was continuous. The way across was as safe over one part of the pavement as over the other, save for its use by others; and the plaintiff had the same right to travel the street as did the defendant. Each was bound to exercise ordinary care to avoid injuring or being injured. What would constitute ordinary care depended upon the use to which the street was put; and the issue as to whether either the plaintiff or defendant omitted the exercise of such care was for the jury to determine.
Nor can it be said that the pedestrian must look both ways or listen for automobiles or motorcycles before undertaking to cross a city street. Baker v. Close, 204 N.Y. 92 (97 N.E. 501); Adler v. Martin, 179 Ala. 97 (59 So. 597). A pedestrian is not bound to constantly keep a lookout for approaching vehicles. Hennessey v. Taylor, 189 Mass. 583 (3 L. R. A. [N. S.] 345, 4 Am. & Eng. Ann. Cas. 396, 76 N.E. 224); Gerhard v. Ford Motor Co., 155 Mich. 618 (20 L. R. A. [N. S.] 233, 119 N.W. 904, and notes). All exacted from one in traveling along or across a street, at the crossing or elsewhere, is that he exercise ordinary care for his own safety; and what constitutes such care depends on the character of the street, the extent of its use by vehicles, and the kind using it, whether crossing at the regular crossing or elsewhere, and the like. Of course, one may undertake to pass over a street under circumstances such as to render the attempt negligent: as, heedlessly running in front of an approaching automobile. Gibbs v. Dayton, 166 Mich. 263 (131 N.W. 544); McCormick v. Hesser, 77 N.J.L. 173 (71 A. 55). Ordinarily, it is the duty of a pedestrian to take some precaution in crossing a street, either by listening or looking for passing vehicles. Niosi v. Empire Steam Laundry, 117 Cal. 257 (49 P. 185); Evans v. Adams Express Co., 122 Ind. 362 (7 L. R. A. 678, 23 N.E. 1039); 2 Elliott on Roads and Streets, Section 1123.
The rights and duties of the wayfarer and the driver of a vehicle, whether automobile or motorcycle, in the use of the streets, are reciprocal. Both may make use of the highway or street, and each must exercise ordinary care to avoid being injured or injuring the other. Coombs v. Purrington, 42 Me. 332; Belton v. Baxter, 54 N.Y. 245 (13 Am. Rep. 578). What will amount to want of ordinary care depends, as said, on the circumstances of each particular case. As a better lookout is likely at street intersections, it would seem that greater care should be exercised by a pedestrian in crossing elsewhere; for it is elementary that the care to be exercised is necessarily commensurate with the dangers of the situation. But whether going out into the street, as plaintiff did, was careless, need not be determined. Negligence is a relative term, and it cannot be said that, as to defendant, the failure of plaintiff to look to the north, before or after leaving the sidewalk, amounted to want of ordinary care. The witnesses agree that she was out from the curbing from 5 to 10 feet, and defendant testified that the way was clear between them (plaintiff and daughter) and the curb, and that they were from 6 to 8 feet out from the curb. He was asked:
He estimated his distance from them then at 30 feet, and thought he was moving 16 or 18 inches from the curbing when plaintiff was struck, and explained that she "waved" back and forth until within about four feet from the curb, when she made an effort "to make the curb." The plaintiff testified that, when struck, she was facing east, or northeast, about 6 feet from the walk, and had no occasion to turn back any, after starting to cross the street. The real issue, then, was whether plaintiff, after walking out into the street, turned or backed in front of the motorcycle, as testified to by defendant, which must have been found to constitute negligence, or whether she was struck when out in the street 6 or 8 feet, leaving ample room for the passage of the motorcycle. The evidence of the greater number of witnesses supported the latter view, and this conclusion would exculpate plaintiff of the charge of negligence. The issue as to whether she contributed to her injury by her own fault was rightly submitted to the jury.
II. Exception is taken to the charge as a whole, for that, though it attempted to apply the law to the facts as contended by plaintiff, it failed to "apply the law as contended by defendant, notwithstanding the court was requested by the defendant repeatedly to make such applications, as shown by the record and the instructions asked by the defendant, and the exceptions taken by defendant to the court's instructions." It will be noted that no particular "omission in applying the law as contended by defendant" is alluded to. We are referred to the record, the seven instructions requested and refused, and the objections to the instructions generally, to find out as best we can. Manifestly, the error relied on for reversal is not stated as required by Rule 53 of this court. Nor is there anything in the proposition or authorities in support thereof indicating the ruling complained of, or where it is to be found. The argument following discusses six of the seven requested and refused instructions together; though, merely as an example indicating omission to apply defendant's theory of law to the facts, it quotes a part of the fourth of those refused:
"In other words, an ordinarily prudent person, in attempting to cross a place used only by pedestrians would not use the degree of care which such a person would use in attempting to cross at a place known by them to be frequented by vehicles propelled by artificial power, which cannot be instantly stopped; nor would an ordinarily prudent person...
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