Wine v. Jones
| Decision Date | 05 April 1917 |
| Docket Number | No. 31216.,31216. |
| Citation | 183 Iowa 1166,162 N.W. 196 |
| Parties | WINE v. JONES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Story County; 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, both of Ames, for appellant.
R. E. Nichol and John Y. Luke, both of Ames, 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 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 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.
[1] 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;Id., 115 Iowa, 357, 88 N. W. 824;Finnegan v. Sioux City, 112 Iowa, 232, 83 N. W. 907;Middleton v. Cedar Falls, 173 Iowa, 619, 153 N. W. 1040;Fox v. Manchester, 183 N. Y. 141, 75 N. E. 1116, 2 L. R. A. (N. S.) 474;Magaha v. Hagerstown, 95 Md. 62, 51 Atl. 832, 93 Am. St. Rep. 317;Denver v. Sherret, 88 Fed. 226, 31 C. C. A. 499;City of Olathe v. Mizee, 48 Kan. 435, 29 Pac. 754, 30 Am. St. Rep. 308. See collection of cases to note Lerner v. City of Philadelphia, 21 L. R. A. (N. S.) 666.
[2][3] 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, 38 L. R. A. (N. S.) 487;Adler v. Martin, 179 Ala. 97, 59 South. 597. A pedestrian is not bound to constantly keep a lookout for approaching vehicles. Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345, 4 Ann. Cas. 396;Gerhard v. Ford Motor Co., 155 Mich. 618, 119 N. W. 904, 20 L. R. A. (N. S.) 233, and notes.
[4] 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. Law, 173, 71 Atl. 55.
Ordinarily, it is the duty of a pedestrian to...
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