193 Iowa 83 | Iowa | 1922
Seventh Avenue extends east and west through the city of Clinton, and Sixth Street, north and south. There appears to have been considerable coasting on Sixth Street, which was forbidden by an ordinance of the city, on what is known as the Sixth Street hill. The sleds were started to the north, a short distance south of Seventh Avenue, but apparently attained considerable speed by the time they reached the intersection thereof with Seventh Avenue.
The sled on which plaintiff was riding at the time of the injury was one he had made himself. He occupied a position
The record contains no direct evidence that either the defendant or the driver of the car actually saw the sled approaching, or knew of the perilous position of the plaintiff before the collision'. Both testified that they obtained only a fleeting glimpse of the sled. The witness Frank testified that, from the point where he stood, in the center of Seventh Avenue, .about 25 yards east of the intersection, the view on Sixth Street to the south was unobstructed for about 25 yards. The corner lot on the east side of Sixth Street was vacant. Both occupants of the car denied that they saw the witness Frank in' the street, or that they saw him signaling them. The speed of the sled was rapid, and the time that elapsed between thé time when defendant and the driver of the car could have seen the sled approaching the intersection on Sixth Street and the collision could not have exceeded a few seconds.
A careful consideration of the record satisfies us that the case should not have been submitted to the jury, upon the theory indicated. Too much was necessarily left to the speculation of the jury. Both occupants of the car denied that they saw the sled until approximately the instant the collision occurred. Of course, the credibility of this testimony was for the jury; but the facts and circumstances disclosed confine the entire occurrence within too narrow limits, without more definite testimony than appears in the record that the occupants of the car actually saw the perilous condition of the plaintiff in time, by the use of reasonable care, .to have avoided the collision, to justify the application of the last clear chance to the case. Defendant’s motion to withdraw this issue from the jury'should have been sustained.
It follows that the judgment of the court below is— Reversed.