Young v. Clark
| Decision Date | 02 May 1939 |
| Docket Number | 44709. |
| Citation | 285 N.W. 633,226 Iowa 1066 |
| Parties | YOUNG v. CLARK. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Jos. E. Meyer, Judge.
Action for damages to the estate of plaintiff's intestate. Verdict for defendant. Plaintiff appealed.
Affirmed.
Putnam, Putnam, Fillmore & Putnam, of Des Moines, for appellant.
Parrish, Guthrie, Colflesh & O'Brien, of Des Moines, for appellee.
The collision in which William H. Young received injuries resulting in his death occurred at an intersection about three miles west of Huxley. Just prior to the accident, Mr Young was driving his Terraplane west on the east and west road, approaching the intersection from the east. Gerald Handley, 19 years old, was riding with Mr. Young. Defendant's gravel truck, driven by Joie Davis, was approaching the intersection from the south.
We will first consider defendant-appellee's proposition that errors, if any, in the instructions relied on by appellant for reversal, are without prejudice for the reason that plaintiff's intestate was guilty of contributory negligence as a matter of law and the trial court erred in overruling appellee's motion for a directed verdict.
Appellee claims that Mr. Young was guilty of negligence per se because he did not have his automobile under control and did not reduce its speed to a reasonable and proper rate when approaching and traversing the intersection as required by Section 319, Chapter 134, Laws of the 47th General Assembly. Section 348 of said Chapter 134 provides that the driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. Appellee also contends that the truck entered the intersection first and plaintiff was guilty of negligence per se because he failed to yield the right of way.
Gerald Handley was the only witness for plaintiff who testified about the circumstances of the accident. The witness testified that he and Mr. Young first saw the truck when they were about 100 feet east of the intersection and at that time it was " further away" from the intersection than the Terraplane; that the Terraplane and truck were being driven at a speed of from 40 to 45 miles per hour; that Mr. Young began to slow down at the intersection and when he entered the intersection was driving on the north side of the east and west road at a speed of about 30 to 35 miles per hour; that when Young again saw the truck the Terraplane was about south of the fence post in the northeast corner of the intersection and the truck was west of the fence post in the southeast corner of the intersection, entering the intersection from the south; that Young applied his brakes when he entered the intersection, skidded, and made a turn to the northwest; that the Terraplane hit the truck when the Terraplane was rounding the corner and " going practically north."
Handley further testified that the Terraplane did not reach the west side of the intersection but made the turn to the north before the impact and that the automobile was " practically straightened out and going north" at the moment of impact which, he states, occurred on the north and south road about west and a little north of the northeast fence post. The testimony of this witness is inconsistent and irreconcilable with the undisputed physical facts.
A witness for plaintiff stated that he observed skid marks made by the Terraplane about 10 to 15 feet long on the north side of the east and west road which ended at a point slightly to the west side of the intersection, the marks curving to the northwest. After the collision, the truck went northwest about 6 or 7 feet into the ditch in the northwest corner of the intersection, having turned over on its right side and facing to the northwest. The rear end of the truck was a few feet into the highway on the northwest part of the intersection and the front end was in the ditch a short distance beyond the corner fence post in the northwest corner of the intersection. There was a pile of gravel in the ditch adjacent to the highway...
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