157 Iowa 352 | Iowa | 1912
— The accident in question occurred on September 6, 1910, at 4 p. m. on one of the principal business streets of Oskaloosa, known as High avenue. This avenue extends east and west, and the street cars are operated upon it. The plaintiff in his automobile approached the avenue at right angles over 0 street. High avenue is eighty feet wide, and the street car track is laid upon its center line. C street is sixty-six feet wide. The structures on 0 street prevented a view east or west on High avenue, except upon near approach to its crossing. Arriving at the C street crossing on the north line of High avenue, there was nothing at the time of the accident to obstruct a clear view of High avenue either east or west. The street car in question was coming from the west. The collision resulted from the failure of the plaintiff to observe the street car. He so failed because his attention was directed ■ in another direction, and he was looking backward, instead of forward. The petition charged various specifications of negligence on the part of the defendant, viz., that the car was operated at a reckless rate of speed; that no gong or bell was sounded; that the motorman was old and incompetent; that the car and its equipments were old and out
It is the contention of appellant that the evidence did not warrant a submission of the case to the jury at all, and that a verdict should have been directed for the defendant. We give our first attention to this question. The plaintiff testified as follows:
i. Automobile accident: contributory negligence: evidence. I was running south on C street when I came to within about sixty feet of the north line of West High avenue. I saw a man on the crossing going east. When I first noticed him, he was directly in front of me. I called out to him to call his attention so he could see I was coming. Instead of quickening his speed, he rather slowed up. I went past him, and, as I passed, I turned and looked over my left shoulder, but he still kept moving on, but seemed to be muttering something. As I drove by him, I had slowed up considerably, so that he would have time to get out of my way. His peculiar actions drew my attention to him, and, when I turned my eyes in front, I was right on the street car line, and the street car was very close to me. I did not have time to quicken my speed, and it was too late to shut down. I had heard no gong or bell sounding. If I had heard a bell, I would have turned to the east or west; or stopped my car. I could have turned either east or west. I could have stopped easier than anything else, as I was running slow. I was running about ten miles an hour. I had been looking towards High avenue until this man attracted my attention. When I first saw the street car, it was right close to me, and my front wheels were close to, if not on the street car line. The street car was virtually on me when I first saw it. I had a clear track in going into High street. I was going south on 0 street, which crosses High. When I first saw the fellow in my way, he was fifty or sixty feet from me. He was coming east down the High street sidewalk.. He was*355 going east on High street. He was in the crossing when I first noticed him, and I was then running about ten miles an hour. He turned and commenced to talk. I could see from the way his mouth worked and his peculiar actions that he was not pleased. I understood from his muttering that he was not pleased with my actions. When he started in front of me, I slowed up and gave the alarm. I supposed he would quicken his speed, but he slowed up, and I slowed up and probably down to eight miles an hour. If it had not been for the trouble with this man, I would have seen the car, but he was making a disturbance and attracted my attention. He followed me down after the accident. I rather think he was drunk. He caused me to slow up. His action caused me to look at him, rather than to see whether the street was clear or not. If I had seen the car, I probably would have stopped, or I could have turned either east or west and missed 'it. This drunken man attracted my attention until it was too late for me to turn. When I got through with him, the car was right on me.
Plaintiff’s witness Parks testified on cross-examination as follows:
There was nothing to obstruct the view of anybody in the auto from seeing or anybody from seeing the auto; nothing to obstruct the view of the street car; nothing to prevent Underwood from turning to east or west in the street if he had been looking. He may have been looking at this man. They came together quick, and it was all done. Underwood could have turned either to the right or left. I do not remember hearing the gong sounded. There was nothing to attract my attention either to the street car or the auto. I saw the car going east and the auto going south. The auto did not turn either right or left, but ran straight at the car. I think the car hit it. Both of the heads came together. The southwest corner of Underwood’s machine struck the. northeast corner of the car. The fender was knocked to one side.
Plaintiff’s witness Dobbyns testified as follows:
I think the car was running seven or eight miles an hour. Underwood was coming at a fair gait. The street*356 car was running faster than Underwood.' The motorman did nothing, that I noticed, to slacken the speed of the car. There was no obstruction west of C street to obstruct the view from the platform of the car.
Other witnesses testified for the plaintiff in substantial consistency with the foregoing. There was no evidence of any reckless or undue rate of speed on the part of the street car, nor evidence of any other negligence, except the alleged failure to sound the gong or bell..
It is undisputed that the plaintiff could’ not have failed to see the approaching street car if he had kept his face to the front instead of to the rear. His car was under control. He had a space of forty feet after entering High street to turn either to the east or west. There was no excuse for his looking over his left shoulder except the merest curiosity. He was confronted with no emergency, real or apparent, which caused him to do an act so reckless. The case presented is. one of simple and conclusive negligence on the part of the plaintiff.
But counsel for appellee overlook the rest of the record.
The , judgment entered below must therefore he— Reversed.