Kessler v. Robbins

Evans, J. — The plaintiff was a child a little less than seven years of, age at the time of the, accident. She was in, company with Phyllis Young, another child between nine and ten, years of age. The accident happened on February 24, 1930, on East - University Avenue and near its junction with East 38th street. This highway is known also as Primary Highway No. 63. East 38th street is located near the eastern limits of the city of Des Moinés. It extends north from East University Avenue, but does not extend south thereof. These two little girls lived a short distance from this intersection. They had just come to the place in a school bus, which had discharged them at this point. On the south side of the avenue and a little west of the intersection, is a group of mail boxes. One of these belonged to the parents of Phyllis and she looked for mail therein. At one end of this line of mail boxes they stóod- hand in hand watching the passing' cars and waiting for a safe opportunity to cross to the north side in the direction of their homes. They were two or three feet distant from the south edge of the pavement. Among the passing cars was that of the .defendant, who came from the west. His car was occupied by himself and his brother. He was driving on the south side of the pavement with his right wheels at a distance of eighteen inches from the edge of the pavement. Under his testimony he had slowed down‘to fifteen miles an hour as he approached-the place of the accident. At a distance of five feet in front of him the plaintiff suddenly started to cross the ■ street. She had not noticed the approach of the car. Nor had Phyllis noticed it. So far as the circumstances of the accident are concerned, the plaintiff rested her case upon the testimony of. herself and of Phyllis. Inasmuch as they had not observed the approach of the car they were unable to testify to any of the circumstances other than the fact of the collision and the injury. They did not testify to the speed of the car, nor to any other act of alleged negligence on the *329 part of the defendant, except as negligence might be inferred from the circumstances here stated. In this state of the evidence, and after plaintiff rested, the defendant presented a motion for a directed verdict. This motion was denied by the court. This ruling was not consistent with his later ruling, but was doubtless made in the expectation of getting more light upon the circumstances of the accident by requiring the defendant to disclose the circumstances that were within his knowledge. Thereafter at the close of all the evidence a verdict was directed for the defendant. The question therefore presented for our consideration is whether upon this whole record a verdict for the plaintiff- could stand, if rendered by the jury. The evidence' is comparatively brief and we can present it in the record quite as conveniently by quoting the material parts thereof so far as they present a conflict between the respective witnesses. Phyllis Young testified: “The mail boxes are towards the west from 38th Street and we went over there and looked in the mail box and then we waited for cars to go past and some went past. We were standing right by the mail boxes, straight west from the mail’boxes. The mail boxes are two and a half to three feet from the south edge of the pavement. We stood facing north. Ora Mae was on the east side of me on my right side. We stood there quite a little while and’just waited and I first looked west and I did not see any cars coming. A little ways west of us there was the top of a hill. I did not see any cars coming between us and the top of that hill. I then looked east and then back west and then there was a car came right past me, in front of me, and I heard Ora Mae’s lunch pail. I looked over there on the other side of the street and Ora^Mae was hit and her pail was out on the pavement and Ora Mae was over by a -telephone post on the east side of 38th street and on the north side of University Avenue. She was east of me and across the pavement from me and she was lying down and the car that struck her, at that time, was over by Boyce’s mail box about a half a block east. That is where this car stopped. The car did not stop between the time it passed in front of me until the time it got down to Boyce’s mail box. This car did not blow or sound any horn. I went across the street to Ora Mae, to where she was lying, and I waited until another car came. I said, ‘Ora Mae,’ Ora Mae.’ She rolled over. Another car came from the east and stopped by her and a man got out from that car and then *330 I ran up and told my mother and she went over to Mrs. Kessler’s. I next saw Ora Mae in her mother’s arms. A man carried her up a little way and Mrs. Kessler met them and took Ora Mae. When Ora Mae laid there by the telephone pole she was off the pavement lying on the dirt. She was carried there by the car. No one picked her up and laid her over there. I did not see the car hit Ora Mae. The first time I saw the car it was going past me. When I looked west and then looked east and then looked back west again was when this car was just passing in front of me. When I looked west then when I looked east Ora Mae was standing right there by me. When I turned my head to the west was when this car went past me. I looked around and something went past me real fast. The first I saw of Ora Mae after the car struck her she was lying over by the telephone post. She was not lying on the pavement at all. No one picked her up from the time this car passed until she was lying over there by the telephone pole. Nobody touched her but me. “Cross-examination. “I am ten years old. When I was over there by the mail box cars were coming along there on the pavement. That is the reason that Ora Mae and I stopped, was for the cars to go by. We stood there a little while. I told Ora Mae not to go across until I did. She was standing there right beside me. I had hold of her hand. She did not pull away from me; I just let loose after I looked and didn’t hardly get my hand loose until the car slashed right by me. We were standing by the mail box off the pavement back about two or three feet. I looked to the west to the top of the hill. It is about two blocks. When I looked I did not see any car within that two blocks. I did not see any sign of a car. It was a very short time after I looked to the -west that I heard this dinner pail. I thought Ora Mae had dropped her lunch pail. I did not see her up around or against the car. First I looked west then east and then west again and just as I turned my head there was something squeezed past me and just in the short time I had been looking east. I did not go out into the pavement where Ora Mae was, I went clear across the street. She wasn’t out on the pavement. This man [defendant \ did not pick her up. I did not see him around there. I saw another car drive up and a man got out. It came the other way. I did not see the man carry her up to her house. I don’t know who carried her up; I went after.Mrs. Kessler. I went over where Ora *331 Mae was. I did not run home, I waited for another car to come. There was another car came up there before T left. I did not see the car hit Ora Mae. The last time I saw her she was standing right beside me.”' The plaintiff testified: “The mail box is on the south side of University and a little west from 38th Street and Phyllis and I went over there. She looked in the box and then we watched for some cars to go by. I was standing east of Phyllis just west of the mail box. I was standing off the pavement on the dirt, and watched some cars go by and then I looked around Phyllis and first I looked west then I looked east and while I was looking east for the cars Mr. Robbins came over the hill and hit me when 1 stepped onto the'street. When-1 stepped on the street I only stepped on the pavement with my right foot. I did not step on the pavement with both feet but just my right foot. My left foot was on.-the dirt. I knew where the car took me when if struck me. It took me over to the télephóne pole. Nobody picked me up and put me there. The first person I saw when I was lying ■there on the dirt near this pole was' Phyllis Young. She came over to where I was lying. She said to me, ‘Ora Mae’. She' did not say anything else. Then Mr. Robbins came ánd picked me up and carried me half way up to home and Mamma came and met him and took me up to the house and then I was taken to the Lutheran Hospital.” The witnesses for the defendant were himself and his brother. The defendant testified: “As I approached 38th Street from the west I was going slightly up grade. Several blocks west of 38th Street it is a sharper grade. I have observed this place at the time of the accident and since. If one stands at the mail boxes you can see down the pavement west about two blocks. On February 24th, there was some dirt on the pavement directly beside the mail boxes. I think these mail boxes are about two and a half feet from the edge of the pavement. I have been driving an automobile about ten years both in the city and country in all conditions of weather. As I left the Fair Grounds and went out University Avenue I was driving. My brother was sitting on the. right-hand side. My car was a Model A Ford Coupé. Thirty-eighth Street comes down from the north, north of the pave *332 ment. There is a bank on the north side. The road is cut down through it and is about ten feet wide. As I approached 38th Street and before I arrived at the place of the accident I was travelling about 25 miles an hour. I am familiar with the speed of automobiles from driving them. I saw these little girls. They were standing east of the mail box. When I first saw them they were not over fifty feet from me. They were' not crossing the street, they were standing about two and a half feet from the pavement. They were just about straight east from the mail box. When I first- saw them I blew my horn and slowed down hut I did not come to a stop but continued to come along and after I blew my horn and approached these girls' the tallest one was nearest me. From the time I blew my horn neither of these little girls moved from the position in which they were standing. After I got to the mail box,to the immediate location of these children my car was not going over 15 miles per hour. I did not have the brake -on. at that time. I reached the mail box. When I was about five feét from these girls one of them ran out in front of me. It was the shorter one. She ran north. When she ran out the front end of my car was about fjve feet from her. I was driving about eighteen -inches ’from the edge of the pavement. There- was other traffic on the road and I was driving on the right-hand side of the pavement. The'right wheels-of my car were about 18 inches from the edge of the pavement. As I approached these little girls from the time I started to slow down and from the time I blew the horn these little girls looked north. They were just standing there. As I came along they were just standing there and up until this smaller girl ran put on the _ pavement neither of them had moved at all. The manner in which she entered the street was she ran. She ran from the point about two and a half feet off the pavement in a northerly direction. The right side of the front end of my car came in contact with her. I put my foot on the brake and stopped the car. My brakes were in good condition. From the time I saw her coming out until she came in contact with the car it was about a second. I did not turn' in either direction because I didn’t have time. At fifteen miles per hour and the condition of the pavement that day, with my brakes in good condition I could have brought my car to a stop in fifteen feet. I applied my brakes just as soon as I saw her" start out. I did not get my brake clear to the floor. After the car struck the little girl *333 I stopped and got out and picked her up. Before she ran out, when I was at a distance of about five feet from her neither of these little girls gave me any warning that they were coming out. I put the brake on. Just as soon as she started out I started to brake. I don’t know how- many steps she had taken. I was not in any position to judge that. From the time I applied the brakes I stopped the car in fifteen feet. I stopped on the right half of the pavement. When I stopped the car I looked in the glass and she was lying just behind the car. I got out and carried her up to the electric light pole on the north side of the street. There is a sidewalk and curb there. I laid her on the ground. My brother was there with me. I saw Phyllis there that day. I do not remember whether she was there when I carried the girl over. My brother stayed there with this little girl while I moved my car off the pavement. I carried her up there and laid her on the ground as near as I can remember. The car was then standing on the right hand side of the pavement. I put it off the pavement on east a little ways. I got it off about 200 feet away. Then I went back where the little girl was lying and picked her up to carry her home and met her mother. I stopped at the house and I was there when the ambulance came.” The foregoing testimony' of the defendant was in substantial accord with that of his brother, who testified to the same circumstances. It appears from the testimony on both sides that the view to the west on the .avenue extended about two blocks from where the little girls stood. The presence of the girls at the mail boxes was noticed by the defendant when he was about fifty feet distant. At that time they stood facing north apparently waiting for cars to pass. On the north side of the avenue, and at its junction with 38th Street, was a telephone pole close to the sidewalk, which extended north on 38th Street. This is the pole referred to in the testimony as .the place where the plaintiff lay before she was carried to her mother. The witness, Phyllis, testified that the first she saw of the plaintiff after the accident was at that location. The plaintiff testified that, the first person she saw after the accident was Phyllis, and that she saw her at that place. This evidence furnishes the keynote of the argument of appellant’s counsel. This point was seventy-eight feet from the mail boxes. The argument is that the impact of the collision was so great as to project the body of the plaintiff over *334 that space; and further that the defendant was unable to stop his car within a distance of less than two hundred ninety-eight feet. Upon this hypothesis it is argued that the speed must have been excessive and uncontrollable. -The trouble with this testimony is that it is in direct conflict with the physical facts. The distance of seventy-eight feet extended northerly more than easterly. The plaintiff testified that she was struck by the right bumper. If the impact of the car threw her forward, therefore, it would not be in a northerly direction. That the car did not drag her or “roll” her in that direction is indicated by the testimony of Phyllis to the effect that the car passed right on after the blow. It did not cross the street to the north. Moreover an impact that would project the person for a distance of seventy-eight feet could hardly have been less than fatal. The wheels of the defendant undoubtedly ran over the prostrate body, and this accounts for the fractured legs. There were no other injuries to her person.' That the excitement of the moment had confused the memory of Phyllis is indicated by the further fact that she testified that Robbins did not return to the place where the plaintiff lay; whereas the plaintiff herself testified that he did. She was in his arms being carried home when they met her mother. It was out of his, arms that her mother received her. This, is not denied by the mother. Immediately following the accident Phyllis rushed to the plaintiff’s home to tell the mother. This may account for her forgetfulness, if such, of some of the circumstances. In any event the record discloses no rational explanation of the presence of the plaintiff on the north side of the street after thfe accident except such as is made by the defendant. In the absence of other rational explanation, that of the defendant must be accepted. There was therefore no evidence of excessive speed or lack of caution or lookout as charged in the petition. The accident itself was distressing, but the court may not impose liability therefor upon the defendant unless he was responsible by some act of negligence on his part. Authorities on the question are quite abundant. But there is no controversy between the parties as to these. We see no legitimate avoidance of the conclusion reached by the trial court. Its judgment is accordingly — Affirmed. Stevens, C. J., and Albert, Kindig, and Claussen, JJ., concur.