183 Iowa 1360 | Iowa | 1918
The plaintiff was riding a motorcycle, in passing south on Twenty-eighth Street, when it came in collision' with a small automobile roadster, coming from the west on High Street, and was severely injured.
The petition charged ithat defendant was negligent in two respects: (1) In not sounding warning of his approach, and, (2)- in driving his car at an excessive speed; and pleaded that plaintiff was without fault. Though the defendant filed an answer, he did not appear at the trial. Appellant’s contention is that the court erred in directing a verdict for defendant on the ground that there was not enough evidence to carry the issues to the jury. It disclosed that neither party sounded any warning. Plaintiff testified:
“There was a bank on the west side of Twenty-eighth*1361 Street. It cut off my view from him. It was 6 or 8 feet tall, the bank on High. I looked west on High before I went to the intersection, and I' saw nothing, and could see 40 or 50 feet on High, and could have turned my motorcycle east. I could have kept out of the way of the car if I had seen it. * * * I could not see the car when I looked. I could have turned east. Q. And avoid the collision? A. I couldn’t have avoided it: if he was going to hit me, he would have hit me.”
Laird, who lived in the second house east of Twenty-eighth Street on the north side of High Street, swore to having seen the vehicles immediately after the collision; that- there was quite a cut on the west side of Twenty-eighth Street, near the intersection:
“More than two and one-half or three feet. It is about four feet. Q. There is not enough cut there to prevent a man riding on a motorcycle seeing over it and seeing a man coming east on High Street, is there? A. I wouldn’t know hardly what to say about that. It seems to me it is quite deep.”
Kreatch, who lived on the northwest corner of Twenty-eighth and High Streets testified to hearing the noise of the collision, and that the vehicles and plaintiff were about 25 or 30 feet east of the line of Twenty-eighth Street; that there is a cut about four feet deep at the comer where it is deepest; that his terrace was about three feet deep; that the rise of the hill was quite a good deal, but less as you recede to the north.
“I think, in going south on Twenty-eighth Street, you can see right across my lawn, and see an automobile coming east on High Street. I cut my lawn off practically level. At the corner, it is quite a rise, and the further back from the corner, the better you can see across.”
Section 1571.-ml9 of the Code Supplement, 1913, provides that “a rate of sjieed in excess of 25 miles an hour shall be presumptive evidence of driving at a rate of speed which is not careful and prudent in case of injury to the person or property of another.” If, then, it can be said that the automobile was moving faster, a prima-facie case was made out for the jury. The theory of appellant is that the automobile could not have struck the motorcycle with sufficient force to have carried it the distance it did, unless struck by a car moving at a speed exceeding 25 miles an hour. There was no evidence, however, indicating in what manner the automobile caused the motorcycle to move sidewise about 30 feet. l)id it carry the motorcycle, or drag or push or throw it, when the vehicles collided? The record is void of evidence bearing on these questions, and, therefore, contains nothing from which the speed of the automobile may be inferred. There is no basis on which to found deductions as to the rate of speed of either vehicle; and for this reason, the trial court did not err in finding that the evidence did not make out a prima-facie case by proving that the automobile was moving to exceed 25 miles an hour.
Our conclusion is that the proof merely established the occurrence of an accident, without casting the blame on either party; and that the law will not compel either party to share the consequent damages with the other. The court did not err in dismissing the petition. — Affirmed.