Womochil v. Peters

• Decision Date: 04 April 1939
• Docket Number: 44590.
• Parties: WOMOCHIL v. PETERS et al.
• Court: Iowa Supreme Court

285 N.W. 151

226 Iowa 924

WOMOCHIL v. PETERS et al.

No. 44590.

Supreme Court of Iowa.

April 4, 1939

Appeal from District Court, Linn County; H. C. Ring, Judge.

Action to recover damages sustained in a collision of motor vehicles at the intersection of Third Avenue and First Street in Cedar Rapids. A trial to a jury resulted in a verdict for the plaintiff. After the usual motions were overruled, judgment was rendered on verdict and defendants appeal.

Affirmed on condition.

Comfort & Comfort and James P. Irish, all of Des Moines, and John D. Randall, of Cedar Rapids, for appellants.

Barnes, Chamberlain & Hanzlik, Donald P. Barnes, and Edwin H Wadsworth, all of Cedar Rapids, for appellee.

SAGER Justice.

Bradley Carlton, one of the defendants, was dismissed during the progress of the trial. Appellants complain of the dismissal but we are unable to see how they were prejudicially affected. Neither Code 1935, section 11182, nor Bruhn v. Fort Dodge St. R. Co., 195 Iowa 454, 192 N.W. 296, supports appellants at this point.

The accident under investigation occurred near midnight of November 29, 1936. At that time plaintiff was riding in a taxicab owned by the defendant Peters, driven by a defendant Augustine, and operated under some agreement with appellant Ethel B. Harte, doing business under the name of Century Cab Company. This arrangement leads appellants into a discussion of the question as to who was responsible for the accident. It is sufficient for the purposes of this opinion, to say that this was a question properly for the jury. We find here no ground for complaint.

The cab in which plaintiff was riding met in collision with a car being driven by one Donnelly. Plaintiff's version of the accident is: " As the cab approached the intersection of First Street and Third Avenue West in the city of Cedar Rapids, Iowa, we were going I should judge around 30 or 35. It speeded up to go through the intersection. I have no recollection of the gears being shifted as we went through the intersection. When we came into the intersection the other car was coming down First Street and that is the last thing I can remember. The other car was to the right coming down First Street. That was when we just about middle way through the intersection by the signal post."

On cross examination this appears: " I didn't see the Donnelly car until an instant before the accident. At that time the cab was just about by the signal and the signal is approximately in the center of the intersection. I don't know whether Augustine slowed down when he approached the intersection or not. I don't remember whether or not he shifted gears."

Defendant Augustine testified: " The brakes of the cab were in good order on the night of November 29, 1936. I do not know how long since they had been tested but they were in good condition. At twenty miles an hour that car could be stopped in approximately ten feet. At thirty miles per hour it would take approximately twenty feet."

Why there should not have been more testimony from this witness will appear later.

Donnelly, driver of the other car involved, testified for plaintiff on direct examination: " As I approached the intersection of Third Avenue and First Street West, I was going between twenty and twenty-five miles an hour. As I approached that intersection I saw the lights of a car shining into the intersection. When I first saw the car I was heading in the intersection. The car was coming from the east. The car was just coming into the intersection at that time, too. I would judge he was going about thirty-five miles an hour. We both got there about the same time as he was traveling about thirty-five miles an hour, and to avoid having an accident I swerved to the left to try to miss him. And my right front fender hit his right rear fender, and it scooted him across the street, and when he stopped he was in front of the bank on Third Avenue in front of the Peoples Savings Bank. He was turned almost around. He was headed in a northeasterly direction. There is a stop light in the middle of that intersection. His back end was clearing that light when I came in contact with the taxi cab. His car was to the right of the stop light when I struck it. His back end when I hit it just missed that pole in the middle of the street. * * * The taxi cab was coming into the intersection just about the same time I was. He might have been there just a little ahead of me. I don't think so, though. He was going faster than I was."

On cross examination he said further:

" I was ten or fifteen feet back from the north curb line of Third Avenue when I first saw the lights of the car that I subsequently learned was the taxicab. I couldn't see anything but the lights of the car at that time. There wasn't anything that obstructed my view but I just didn't see the car. The first time I saw the car he was in the intersection there and I seen I couldn't stop. When I first saw this other car the front end of my car was about even with the north curb line of Third Avenue if it had been extended. At that time he was in the intersection-about half a car length. To the best of my judgment the stop light is approximately in the center of the intersection. The taxicab traveled fifteen or twenty feet after I first saw him. The brakes on my car were all right the night of the accident. I could stop that type of car in about ten to twelve feet going twenty miles an hour. (Witness admits that he had four ‘ drinks' of gin that evening before the accident.)

When I was ten feet north, maybe not that far, of the intersection of Third Avenue and First Street, I looked and saw the lights of the cab but did not see the cab itself. At the time of the actual collision the rear end of the cab was to the west of the center post in the intersection. I do not know how far west but it cleared it when I hit it."

Cross examination left some uncertainty as to just what the witnesses intended to say, but the weight and credibility thereof was for the jury. While we have not attempted to give the testimony in full, the quoted portions convey a fair understanding of the case as a whole.

The court submitted plaintiff's charges of negligence in particulars, which we summarize: Excessive speed; speed in excess of that permitted by statute; failure to have the car in control; failure to reduce speed when approaching an intersection, this in violation of the city ordinance; a failure to keep a lookout; and failure to yield the right of way.

Appellants further assert that the court was unduly strict in limiting the cross examination of Augustine when he was called as a witness by the appellee. This witness being a defendant might well be regarded as hostile to the plaintiff's cause and the court rightly limited the cross examination to matters brought out on direct.

One of the claims most vigorously pressed by the appellants is that the court should have directed a verdict on the ground, generally stated, that the evidence failed to show any negligence which was the proximate cause of plaintiff's injury, and that the record conclusively shows that the accident was due to the negligence of Donnelly. With this we do not agree. The question as to how the accident occurred and as to whose fault it was, was strictly for the jury. Appellants' citations to this point do not bear them out. Two of them, Hartman v. Red Ball Transportation Co., 211 Iowa 64, 233 N.W. 23; Shuck v. Keefe, 205 Iowa 365, 218 N.W. 31, are rather against, than for them.

Appellants' claim that the court erred in submitting the specifications of negligence it did, except that they admit the question of excessive speed was in the case. The record is such that the jury might have found that the defendants were negligent in the particulars submitted. Appellants' complaint based on the court's refusal to give the requested instructions is...