Clay v. Iowa Telephone Co.

Evans, C. J. [68] contributory lision on highway. [67] On the night of May 11, 1914, about 9:30 o’clock, the plaintiff was knocked down in the public [68] highway by one of defendant’s teams. The one question presented on this appeal is whether, the plaintiff showed himself tree from eontnbutory negligence, the contention of the ap- * pellant being that the plaintiff was guilty of contributory negligence as a matter of law. The plaintiff lived in the unincorporated town of Jamison, and owned a store therein. At the time of the accident, he was walking along the highway from his store to his home. The town of Jamison contained a population óf about 75 people, and, as we understand the record, was without sidewalks. The plaintiff was 77 years of age. ITe was walking northerly.. The defendant’s team overtook him, going in the same direction and being driven by one of the defendant’s employees. The plaintiff was walking near the center of the traveled highway, which was 25 or 30 feet wide at that place. There were ditches on either side, and a culvert to be crossed a short distance ahead of him. The plaintiff heard the noise of the team -only a moment before he was struck, tie stepped to the left side, but did not escape the collision. As we understand the record, he was struck by the "near” horse; that is to say, the horse on the left side. This horse was blind in the left eye. The driver could have seen the plaintiff for a distance of 25 or 30 feet ahead of him, if he had been observant. The negligence of the driver is not disputed here. The contention for the appellant is that the plaintiff could have discovered, the team with practically the same ease with which the driver could have discovered him. It is also contended that the plaintiff walked too near the center of the traveled track, and that he should have taken a position farther to one side, the argument being that he subjected himself unnecessarily to the risk of passing teams. "We think neither contention can be sustained. The plaintiff was not guilty-of contributory negligence as a matter of law by failing to keep a lookout backward. Delfs v. Dunshee, 143 [69] Iowa 381; Graham v. Evening Press Company (Mich.), 97 N. W. 697. Also Mugge v. Brackin (Fla.), Ann. Cas. 1914 A, page 247. Nor can it be said that he was guilty of negligence as a matter of law in traveling near the center of the street. There were ditches on each side of the road, which, prudence required him to avoid. The night was somewhat dark, and prudence would naturally require some margin of safety between him and the edge of the 'ditch. Furthermore, he was approaching a culvert, which was narrower in its extent than the full width of the road. He was quite as liable to meet a team, or to be overtaken.by one, at one side of the road as in the center thereof. Indeed, the very exigencies of travel in reverse directions require teams to take the sides rather than the center of the road. It cannot, therefore, be said as a matter of law that he chose an unsafe part of the highway when a safe position was available to him. Reasonable care on the part of those approaching from behind him would render him safe in any part of the highway; whereas carelessness would subject him to danger in any part of it. We think it quite clear that the whole question of negligence, both of the defendant and of the plaintiff, was a question for the jury, and it was so submitted. The instructions are not complained of. The judgment below is, therefore, — Affirmed. Ladd, Gaynor and Salinger, JJ., concur.