Winegardner v. Manny

• Decision Date: 08 January 1946
• Docket Number: 46783.
• Citation: 21 N.W.2d 209,237 Iowa 412
• Parties: WINEGARDNER et al. v. MANNY.
• Court: Iowa Supreme Court

21 N.W.2d 209

237 Iowa 412

WINEGARDNER et al. v. MANNY.

No. 46783.

Supreme Court of Iowa

January 8, 1946

As Modified on Denial of Rehearing March 13, 1946.

J R. McManus and Ralph N. Lynch, both of Des Moines, for appellants.

Gibson Stewart & Garrett, of Des Moines, for appellee.

GARFIELD Justice.

The question presented is whether the evidence is sufficient to have warranted submission to the jury under the doctrine of last clear chance. This doctrine, sometimes called the humanitarian doctrine, proceeds upon the theory that notwithstanding the negligence of an injured plaintiff, if defendant knows of the peril in which plaintiff has placed himself, it is defendant's duty, after acquiring such knowledge, to avoid the accident if that can be done by the exercise of ordinary care. For a breach of such duty which results in injury there may be a recovery. The doctrine applies where a defendant is aware of plaintiff's perilous position in time to have avoided the accident by the exercise of ordinary care but fails to do so. The doctrine refers to negligence after negligence. It is a phase of the doctrine of proximate cause. The theory is that the later negligence becomes the proximate cause. Groves v. Webster City, 222 Iowa 849, 854-857, 270 N.W. 329, and cases there cited; 5 Am.Jur. 778, §§ 489, 490; 4 Blashfield Cyc.Auto.L. & Pr., Perm.Ed., § 2801, pages 536-538; 2 Berry Automobiles, 7th Ed., 366, § 2.337. See also Annos. 92 A.L.R. 47, 119 A.L.R. 1041.

It is our duty to consider the evidence in the light most favorable to plaintiff. When so considered, we think a jury could properly find that plaintiff was in a position of peril, defendant had actual knowledge thereof in time to have avoided the collision by the exercise of ordinary care, after acquiring such knowledge he failed to exercise such care and injury resulted. See Lynch v. Des Moines R. Co., 215 Iowa 1119 1125, 245 N.W. 219. It follows that the case should have been submitted to the jury.

Plaintiff was 14 at the time in question. (We refer to the boy, not to his father and 'next friend', as plaintiff.) While coasting on his sled on Main Street in the town of Ankeny in daylight on January 11, 1943, plaintiff was struck by defendant's 1942 Plymouth sedan. (The 1940 population of Ankeny was 779.) Main Street is paved, 55 1/2 feet between curbs, and runs east and west. Shortly before the accident, plaintiff with his sled in his hands was standing in a north and south alley, in line with the sidewalk on the north side of Main Street. The sidewalk is 12 feet 4 inches wide, the distance from the buildings to the north curb. Plaintiff was 3 or 4 feet east of the postoffice which is on the west side of the alley.

Defendant was driving not over 15 to 20 (his answer alleges 5 to 10) miles an hour west on Main Street, which is 'a little down grade from the alley east.' Plaintiff coasted out into the icy street in a southeasterly direction. The left bumper guard on defendant's car struck plaintiff as he lay on his sled headed south, pushed the sled 15 to 20 feet west, and stopped on a line about even with the center of the alley. Plaintiff was very severely injured.

The alley is 21 feet wide. Going east from the alley there are a pool hall 26 feet wide, a grocery store 36 feet 7 1/2 inches in width, and a variety store 20 feet 2 1/2 inches wide. Three or four automobiles, headed northwest into the curb, were parked in front of these buildings from the alley east. The collision occurred slightly north of the center of the street, south of the car parked next to the alley. The alley where plaintiff was standing is a foot higher than Main Street. Plaintiff was about 5 feet tall.

Plaintiff's father testified to this talk with defendant ten days to two weeks after the accident:

'He told me he had seen the boy when he was about down to the variety store coming west on Main Street, had seen him standing in the alley with his sled in his hand and knew he was going to come out into the street but thought he was going to go straight across the street and that he would be across before he (defendant) got there.'

On cross examination this witness said: 'He told me he seen the boy with the sled in his hand. He knew he was going to slide out in the street. * * * he seen him there with the sled in his hands and was heading towards the street. * * * Why, he seen him drop the sled down. * * * He said he seen the boy drop the sled and knew he was coming out into the street.

'Q. Oh, he saw him in the act of dropping on the sled, is that it? A. Yes. * * *

'Q. But he did see him as he slammed down in the street on his sled, that is what he told you? A. Um-hmm.

'* * * he said he was down in front of the variety store when he made the observation. * * * That point would be in the neighborhood of 80 feet east of where the boy was.'

The witnesses Mr. and Mrs. Monthy were driving east on Main Street at the time of the accident and saw it. When they were in front of the store adjoining the postoffice on the west they saw the boy slide out into the street from about the middle of the alley. At about that time defendant's car was at the east side of the grocery store. That is where Mr. Monthy first saw it. Mr. Monthy testified that when plaintiff's sled was south of the car parked just east of the alley, the boy saw defendant and turned sharply to the right in an attempt to avoid the collision. But, as stated, defendant's left bumper guard struck plaintiff.

There is nothing to conflict with the above evidence. The testimony of Mr. and Mrs. Monthy corroborates to some extent (if corroboration were necessary) that given by plaintiff's father. In any event, it is consistent with the father's evidence.

While of course there is other testimony, we have mentioned enough to demonstrate that a jury could properly find plaintiff was in a position of peril when he was headed into the street from the alley with his sled and that defendant had actual knowledge of such peril in time to have avoided the collision by the exercise of ordinary care. The undisputed evidence is that defendant knew when he first observed plaintiff that he was about to coast into the street in front of defendant's oncoming car. In order for defendant to have had actual knowledge of plaintiff's peril it is not necessary that he actually knew an accident would be inevitable if defendant failed to exercise care. It is sufficient if peril was so imminent that to a person of ordinary prudence the infliction of injury would seem probable if proper effort were not made to avoid it. Lundien, Admr. v. Railway Co., 166 Iowa 85, 100, 147 N.W. 308; 4 Blashfield Cyc.Auto.L. & Pr., Perm.Ed., § 2805, page 546; 45 C.J. 992, § 543. See also James v. Iowa Cent. R. Co., 183 Iowa 231, 235, 165 N.W. 999.

From a place in Main Street south of the center of the alley, where plaintiff started with his sled, to the point in the street south of the east side of the variety store, where defendant was when he observed plaintiff, was over 93 feet by measurement. There is substantial evidence that after observing plaintiff, defendant traveled 75 feet to the place of...