Hubbard v. Bartholomew

Ladd, J. Cottage Grove avenue in Des Moines extends east and west, as does University street, and both are inter [60] seeted by Twenty-First street running north and south. On either side of the latter are dwelling houses averaging less than one hundred feet apart between the two intersecting streets, which are a third of a mile apart, so that the speed of an automobile on November 3, 1910, might not lawfully exceed ten miles an hour. Sections 1571a, 1571h, Code Supp. On that day Reeve, an automobile chauffeur, invited plaintiff, a policeman, to take a ride with him in a Buick runabout, and at about 1 o’clock in the afternoon they started with Reeve at the wheel and plaintiff at his left and, after driving about a mile, turned in Cottage Grove avenue, going west to Twenty-First street and then turned north on Twenty-First street. There is a slight rise in the street from the corner for about three hundred feet and from there on slightly down grade to University street. The speed of the automobile is estimated by plaintiff at fifteen miles an hour, but Reeve thought it moving from twenty to twenty-five miles an hour. Plaintiff testified it was from three to five or six feet from the east curb. The defendant lived on the west side of the street, and plaintiff noticed him drive his automobile down the driveway north of his house to the east side of the street and turn south and move slowly near the east curbing. The automobiles were then about one hundred and seventy-five or two hundred feet apart. Reeve’s car turned westerly in time to avoid colliding with that of defendant but ran over the west curbing against an iron post in the parking, pushed it over, and struck a tree, injuring plaintiff. The width of the street between the curbs was thirty-four feet and four inches. According to the plaintiff’s testimony, as defendant’s ear turned south, it was seventy-five to one hundred feet north of the iron post, and Reeve’s ear one hundred feet, possibly a little more, to the south of it, and Reeve’s car did not turn to the west side until necessary to avoid a collision and then at an angle of forty-five to ninety degrees. Mason estimated that defendant’s car was six to eight feet from the east curbing and testified that he could see the track of Reeve’s car from where it veered [61] to the west and that it began to turn seventy-five to ninety feet south of defendant’s car, which was then opposite the post; it then being from six to ten feet west of the east curbing and from where it turned went straight to the post. Reeve testified: What first attracted my attention as I came up Twenty-first street was, after I got up along by the grade, where I could see level, I saw a car approaching on the right-hand side and the car coming toward me. I should judge when I saw it it was pretty close to the curb. I could not have passed that car on our right between him and the curb. When I approached him, I saw there was no room for me to go between him and the curb on the right-hand side because he was so close to my side of the curbing, and further when I saw I could not get through there, and he made no effort to turn and give me room, I turned to my left. He did not stop his car or give any warning or any signal that I saw. I passed his car on the left. I did not notice exactly the driveway he came out. I did not see him come out of the driveway. He was coming down along the right-hand side slowly and it was pretty hard to tell, me moving and him moving at the same time, what distance he had been running before I met him; it might have been one hundred feet or two hundred, maybe more; I could not tell. I did not come to any stop at all; I slowed down and I thought he had ample time to turn over to his side of the street before I met him. ... As I turned to the left I tried to apply my brakes. Q. What did the car do ? A. It did it so quickly that I do not know what it did. The witness estimated the speed of his car at from twenty to twenty-two miles per hour and.proceeded: Q. So it would be your best judgment you were very close the center? A. Pretty close to the center. Q. So you came long up then pretty close to the center and Bartholomew was about five feet from the east curb. A. Four or five feet. When I got pretty close to Bartholomew I turned to the left some, not much. A person would always suppose a man would keep on his own side of the street. Q. But you knew he was not? A. I knew he was not at that time. Q. Now how much space did you have to pass through to the west of Bartholomew without running into the west curb? A. Oh, I had quite a [62] little space. Q. You must have had twenty-five feet, didn’t you, clear space? A. No, I don’t suppose quite that much. Q. He was within five feet of the curb, his ear would not be over four and a half feet or five feet wide, would it ? A. About five and a half feet wide, I think. Q. Well, that is ten feet and a half, and we find out that the street between the curb was thirty-four feet, that gives you twenty-three and a half feet of space, doesn’t it? A. Yes, sir. Q. It looks like a big enough hole for anybody to drive through, doesn’t it? A. Well, under considerations, yes. Q. Now, Beeves, you say the pavement was dry? A. Yes, sir. Q. Some time before you struck the curbing you got busy with your brake, didn’t you? Some time before you went off the track you got busy with your brakes, didn’t you? A. Yes, sir. Q. What did you do ? Tell the jury what you did to brake that car. Tell them how you did it. Some of them, at least, are not familiar with automobiles, tell them what you did. A. Well, there is three or four brake pedals right at your feet and watching which way he was driving and which way' I was driving at the same time I reached down and put on the brake with my foot. Q. How hard did you set the brake? A. Probably set it pretty hard. Q. Well, did you ? A. I did. (He did not know whether the wheels skidded.) Q. You would not ordinarily call that a good job of steering, would you? A. Well, not a good job of steering. Q. Were you familiar with the car? . A. Well, I had been driving one of that kind very often. Q. Had you ever run that particular car before? A. Well, I run that particular one around the shop. The car steered very easy; the fact is, I guess it steered a little too easy; it steered easier than the car I had been driving. It was more sensitive to the touch. Q. A little touch on that car meant more than any other car you had had hold of? A. More than any other car I had been driving then. Q. And, going at the rate of speed you were going, you missed calculation and gave it a little too much of a twist? A. Well, I guess that must have been about it. The witness farther testified that the car belonged to Brothers; that he was sent by the Strong Motor Company to bring it to its repair shop and fix it; that Brothers told him the carbureter needed adjustment and the pump fixing; that he told plaintiff he was going to try the car out and invited [63] him to go along; and that he had driven the car around town some and did not mention the defects to plaintiff. Such is the evidence recited somewhat in detail. Its sufficiency is the sole question raised. 1. NEW TRIAL : sufficiency of evidence. I. Appellee insists that the order granting a new trial ought not to be set aside because within the discretionary powers of the trial court, A verdict was directed for defendant because of the insufficiency of the evidence to support a verdict. The granting of a new trial, then, 'merely held that the court was mistaken in the former ruling and that the evidence was sufficient for that purpose. The question passed on then did not involve the exercise of discretion but a question of law; that is, whether, accepting all the evidence as true, it and the inferences favorable to plaintiff to be drawn therefrom would .sustain a verdict for plaintiff. The decision of such a question depends solely upon the state of the record and not what may be advisable in the administration of justice. McLeod v. Shelly Mfg. & Imp. Co., 108 Ala. 81 (19 South. 326). 2. HIGHWAYS : duty of travelers in passing : statute. 3. SAME : negligence : presumption : evidence. II. “Persons on horseback or vehicles meeting each other on the public roads shall give one-half of the same, turning to the right. ’ ’ Section 1569, Code. By meeting each other is not meant merely passing in opposite directions, ^ut “coming together in such manner that there would be an actual collision, or an apparent danger of one, if they should pursue their course without change of direction.” And “it is only when one meets another that he is required to turn to the right. He has the right to use any part of the highway which is unoccupied and which is not desired for the use of ■ another. ’ ’ Riepe v. Elting, 89 Iowa, 82. The general rule is there said to be that: “Where a collision occurs between the horse or vehicle of a person on the wrong side of the road and that of a person coming towards him, the presumption is that it was caused by the negligence of the person who was on the [64] wrong side of the road, but that his presence on that side may be explained and justified.” In Johnson v. Small, 5 B. Mon. (Ky.) 27, the plaintiff was held excusable for not moving over from' the left side of the road for that he could not have done so in time to avoid a collision; and in Clay v. Wood, 5 Esp. 44, it was adjudged that a person whose property was injured while on the wrong side of the' road might recover damages if there was ample room for the party who caused the injury to pass in safety, and .that issue was for the jury. It is elementary that a traveler may make use of any portion of the highway he chooses (Wrinn v. Jones, 111 Mass. 360), and the circumstance that defendant ran his car to the east side of Twenty-First street is of no importance save as explaining his subsequent conduct. The car could not well have been turned to the south without making a curve which would carry it near the east curbing. And he had the lawful right to drive his car along that side; no ordinance of the city directing otherwise having been introduced in evidence until “meeting” the ear in which plaintiff was riding. Under the statute it then became his duty to turn to the right and allow Reeve’s ear to pass next the east crnbing, providing he, acting as an ordinarily prudent person, could have then safely turned his ear so as to have done so. Of course this depended on the distance the cars were apart and the rate of speed each was moving and in this case was a question for the jury to pass on. If defendant, acting as an ordinarily cautious man, could have safely turned his car to the right, so as to have allowed Reeve’s car to pass on the other side, it was his duty to do so, and if he failed therein he must have been found to have been negligent. III. Conceding defendant to have been negligent, were plaintiff’s injuries the proximate consequence thereof Í The cars did not collide. Reeve steered his to the left, and, according to the undisputed evidence, there was a space between defendant’s car and the west curb line of twenty-three feet or a little more, and both Reeve and plaintiff noticed that defendant was [65] uot turning but continued, to drive Ms car within five or six feet of the east curbing without indicating a purpose of turning. As soon as they understood he was not going to turn, it became their duty to do so in order to avoid a collision, and this happened, according to their evidence, when “pretty close” and, according to Mason, when seventy-five or ninety feet away. Now, it is manifest that defendant’s failure to turn compelled Reeve to do so. There was ample room for this. The cars were practically the same distance from the curbing and, as defendant’s car was but five or five and a half feet wide, Reeve need only have swung towards the west this distance to have avoided collision. As the day was clear and the sun shining, there could have been no mistake concerning the situation of the parties and the paved way, and, but for something unexplained, it would seem the car would have passed in safety. 4. NEGLIGINCE :proximate cause. Of course it is not essential to constitute proximate cause that the consequences should have been foreseen. ‘ ‘ It is sufficient if the injuries are the natural, though not the necessary or inevitable, result of the wrong; such injuries as are likely under ordinary circumstances to ensue from the act or omission in question. The test, after all, is: Would ordinary prudence, have suggested to the person sought to be charged with negligence that his act or omission would probably result in injury to some one ? The particular result need not be such as that it should have been foreseen.” Burk v. Creamery Package Co., 126 Iowa, 730. Either a collision or something .like that which happened would seem to be likely in a situation like that disclosed unless the ear safely passes, and, though the question is close, we are inclined to regard it as one on which minds might reasonably differ, and therefore the issue as to proximate cause was for the jury. [66] 5. SAME: automobile accident : imputed negligence. [65] IV. It conclusively appeared that Reeve was driving the car faster than ten miles an hour along a street where residences [66] averaged less than one hundred feet apart, and as this was in violation of the statute, as it then read, he was guilty negligence. It is said, however, that his negligence was not imputable to plaintiff who was riding on invitation as a guest, and this may be conceded. Nesbit v. Town of Garner, 75 Iowa, 314; Wymore v. Mahuska County, 78 Iowa, 396; Larkin v. Railway, 85 Iowa, 492. 6. SAME : injury to passenger : contributory negligence. But he was a policeman wearing a star as such and carrying a revolver and, though off his assigned beat, was still clothed with the authority of enforcing the law. By section 664 he was endowed with the same authority as marshals m making arrests, and the latter are empowered to make these in order to “diligently enforce all laws . . . for the preservation of the public welfare and good order.” Section 662, Code. Though Reeve was driving at a speed in excess of that limited by statute, plaintiff interposed no objection or protest whatever, though presumably he might have required him to slow his car down to ten miles an hour. Had he done so, no argument is required to demonstrate that the accident would not have occurred. As he was in a position of authority and might have determined the speed of the car, he is not in a situation, because of being a guest, to evade responsibility for the rate at which it was being driven. His position is akin to that of a person other than the driver taking no heed of the danger ahead. The principle is well stated in an instruction approved in Holden v. Railway, 177 Mo. 456 (76 S. W. 973), saying: That, although the plaintiff may not have been the driver of the wagon mentioned in the testimony, nevertheless plaintiff, situated as he was, had no right to rely implicitly upon the care and prudence of the driver on the seat beside, him for his own safety, but it was his duty, if said driver was approaching said Thirteenth street, on which cars were passing, at a careless rate of speed, to attempt to have him check [67] his speed to a safe rate; and if the jury find that under the circumstances said wagon was approaching defendant’s tracks at a careless rate of speed, and that plaintiff, situated as he was, made no effort to have said speed diminished, and that such action of the plaintiff contributed directly to said collision and his injuries, then he cannot recover, and your verdict must be for defendant. See, also, Lake Shore & M. S. Ry. Co. v. Boyts, 16 Ind. App. 640 (45 N. E. 814); Bush v. Railway, 62 Kan. 769 (64 Pac. 624); Davis v. Railway, 259 Fed. 10 (88 C. C. A. 488, 16 L. R. A. (N. S.) 424). Though having authority to control the speed of the car, plaintiff made no effort to do so but instead by his silence acquiesced in its movement at an unlawful speed and thereby was guilty of negligence contributing to his injuries, which necessarily must defeat his recovery. Having reached this conclusion, there is no escape from adjudging the first impression of the learned judge the correct one and reversing the order granting a new trial. — Reversed. Weaver, C. J., and Gaynor and Preston, JJ., concur.