Kessler v. Robbins , 215 Iowa 327 ( 1932 )

I have read the record with considerable care, and it seems to me that we should not say, as the trial court did, that the defendant was not negligent as a matter of law. Under the undisputed record, the plaintiff, who was then a few days under seven years old, and her little companion of ten years, were standing on the shoulder of the pavement two or three feet from the south curb line of University Avenue in East Des Moines. The paving on this avenue was 18 feet wide. They were standing near some mail boxes which were fastened on a 2x4 between two uprights on the shoulder two or three feet south of the south curb line. University Avenue runs east and west. Just a short distance east of these mail boxes, East 38th Street cut into University Avenue at right angles, but did not extend south of University Avenue. East 38th Street was a graded gravel or dirt road with a driveway some ten feet wide. It was sometime after the closing of school in the afternoon and the little girls, after getting off the school bus, had gone over to the mail boxes to see if there was any mail for their parents. There was none, and they stood in the position above described, waiting for an opportunity to cross to the north side of University Avenue and proceed northward along 38th Street to their homes. The elder girl was standing to the west, holding the hand of the plaintiff, who stood just east of her. The evidence shows that they had looked westward, in which direction they could see but about two blocks, because of a hill. They saw no car approaching and looked eastward and saw no car approaching from that direction. The older girl said she was just turning to look west again when a car "slashed" right past her in front of her, and she said: "I heard Ora Mae's [the plaintiff's] lunch pail hit the pavement." She said that she then looked and saw the plaintiff on the dirt north of the pavement of University Avenue, and over by a telephone pole immediately east of 38th Street. She says she immediately ran over to the plaintiff and was the first one there, and that on calling her by name, the plaintiff turned and rolled over. She says that the plaintiff was carried to the place where she was lying by the defendant's car and that the defendant's car continued on eastward and stopped by a mail box about a half block east. The evidence shows that the place where the witness says the car stopped was 220 feet east of the place of the impact. This witness says that the defendant's car did not stop until it reached this point 220 feet east. She states that the defendant's car did not blow or sound any horn.

It is undisputed that both children before the collision were standing facing and looking north. She says that the defendant's car went past her real fast. At another time, she testified that the defendant's car "squeezed" past her. The words "slashed" and "squeezed," as used by the little girl, are rather homely, but they are very expressive statements of what took place, the first expression indicating the extreme speed, and the second one, the close proximity of the defendant's car.

The plaintiff's father testified that it was 78 feet from the mail boxes to the pole where the elder girl says the plaintiff was carried or thrown by the car, and that it was 220 feet, by his measurement, to the place where defendant's car came to a stop. The plaintiff's testimony corroborates fully the testimony of the elder girl. She testified that when she stepped onto the pavement, she stepped only with her right foot, and that her left foot was on the dirt, that she knew where the car took her when it struck her, and that was over to the telephone pole, and that nobody picked her up and put her there, and that the first person she saw while she was lying on the dirt near the pole was the elder girl, and that the defendant came and picked her up and started to carry her to her home. The testimony of all of the witnesses was that the plaintiff was conscious at all times after she was struck and that she was crying and screaming.

The defendant's testimony is that he was driving eastward along University Avenue, which is otherwise known as Primary No. 63, to his home at Oskaloosa. His brother sat beside him in the front seat. He testified that one standing at the mail boxes could see westward down the pavement about two blocks. He and his brother state the little girls were standing east of the mail boxes, instead of west, as they testified. He states that when he first saw them, they were not over fifty feet from him, and that there was nothing in the way to have prevented his seeing them for a distance of about two blocks west. As he approached the scene of the accident, he says he was traveling about 25 miles an hour. He further states that the children were standing about 2 1/2 feet from the pavement, and that he blew his horn and slowed down, but did not come to a stop, and approached the girls at a speed of about fifteen miles an hour; that from the time he blew his horn, neither of the girls moved from the position in which they were standing; that he could see the size of the children and knew that they were both small children; that there was nothing passed between him and the children until after the accident; that he blew his horn and the children "still stood looking to the north;" that he did not know whether the children heard the horn or not; that they never looked in the direction from which his car was coming, to his knowledge, and all the time he was approaching them, after he blew his horn, they continued to look north, and they did not look in his direction at all. He says that as he got within fifty feet of them, he reduced his speed, and that, as he says: "I expected them to go across if they didn't hear me probably." "I don't know whether they heard the horn or not. I didn't know what they was going to do." He says that as he approached the mail boxes, he was not going over fifteen miles an hour; that he did not have the brake on at that time, and when he was about five feet from these girls, the shorter one ran north in front of him; and that at that time, he was driving about 18 inches from the edge of the paving, and the right wheels of his car were about 18 inches from the edge of the pavement; that during all the time as he approached these girls and from the time he blew his horn, they looked north; that they were just standing there; that the little girl ran from the point about 2 1/2 feet off the pavement in a northerly direction, and that the right side of the front end of his car struck her; that he put his foot on the brake and stopped the car; that his brakes were in good shape and the car had four-wheel brakes; that just as the plaintiff ran out, he says:

"I put my foot on the brake. From the time I saw her coming out until she came in contact with the car, it was about a second. * * * 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."

He states that he did stop the car within fifteen feet after he hit the girl. He states he stopped the car on the right half of the pavement, and that after he stopped the car, he looked in the glass, and she was lying just behind the car. The evidence fails to disclose whether he had a side mirror or the customary mirror above the windshield. If it was the latter, it is fair to assume that the body of the child must have been lying much more than fifteen feet behind his car; otherwise, her body would not have been reflected in such mirror. He states that after stopping the car, he got out and carried the little girl northeast across the pavement and laid her on the ground near the pole, and that his brother then stayed there with the little girl while he moved his car off the pavement; that the car was then standing on the right-hand side of the pavement, but he moved it east about 200 feet off the paving; that he then came back and carried the little girl, who was crying, to the home of her mother. There was nothing to the contrary in the testimony of the defendant's brother.

Under this record, should the court say that as a matter of law the defendant was not negligent? I cannot bring myself to think so. There is a direct conflict between the testimony of the two little girls and the testimony of the defendant and his brother. There are circumstances which strongly corroborate the testimony of the little girls. If their testimony is to be believed, the defendant was driving at an excessive rate of speed under the circumstances. He was approaching an intersection where, under the provisions of Section 5031 of the Code, he should have reduced the speed to a reasonable and proper rate, and had control of the car. If the defendant's car struck the plaintiff and carried her to the point near the telephone pole and then proceeded on 220 feet, it was certainly going at an improper rate of speed and was not under the control of the defendant.

The direction which the elder little girl claimed the car took after striking the plaintiff is the direction which the car naturally would have taken under the circumstances. When the defendant saw the plaintiff step in front of the car, he naturally would have tried to swerve the car to the left to avoid her, because if he had attempted to turn to the right, he would likely have struck the other little girl. If he did swerve to the left and the car continued on, it would go directly towards the telephone pole, and if the speed of the car was great enough, or if the driver was excited, the car might well have continued on to the point where the elder girl said it did continue. What is there in the record that contradicts the plaintiff's contention on this point? The defendant says that after striking the plaintiff, the car proceeded directly east for a space of fifteen feet and stopped on the right side of the paving. If it did stop in that position, why the great hurry to take it from that position where the car was safely parked, so far as other traffic was concerned, and drive it 200 feet east? This seems a rather strange performance, in view of the fact that the little girl with her legs badly broken was screaming with pain and needing the promptest attention. He said that he picked the little girl up and laid her down and told his brother to watch her while he took the car from a place where it was safely parked and moved it 200 feet. His brother testified that he was able to drive a car and did drive a Ford. Why didn't the brother remove the defendant's car while the defendant took the plaintiff to her home or elsewhere? It will hardly do to say that it was not safe for him to leave his car parked where he says he stopped it after the collision because of the traffic, because, no doubt, as usually happens in such cases, the highway was pretty thoroughly blocked on both sides, as approaching cars stopped to see what the trouble was. In any event, prompt attention to the child was much more urgent than any dangers that might threaten by leaving the car parked on the paving; but leaving aside entirely the question of speed, it seems to me that the defendant was very negligent in the operation of his car prior to hitting the child. The occasion is a very rare one when a motorist is blameless in striking a child that he sees standing along the curbing for any considerable distance before he reaches the spot. To my mind, the defendant was negligent in proceeding to drive by these two children within 18 inches of the curbing and but about 3 or 4 feet from the place where they were standing, even though he was going about fifteen miles an hour, as he claims. These children were in the range of his vision for 300 feet or more. He might have seen them much earlier than he did, but he admits he saw them when he was 50 feet from them. He states that he sounded his horn, but the children say they didn't hear it. He admits that they gave no evidence of hearing the horn, and that during the time he was approaching them, after he sounded his horn, they never once looked in his direction, but at all times stood facing the north. He had reason to believe that they did not know of his approach. He knew they were children, with all the propensities of children. He knew, or should have known, that a child of seven years might have done the very thing which the plaintiff did do. How many times, in the experience of every parent, has a child under those circumstances, or in crossing a street, broken and run away from the parent? As he states, they never looked in his direction at all and he expected them to go across, if they didn't hear him; that he didn't know whether they heard the horn or not; that he didn't know what they were going to do. Under those circumstances, I would say that he had reason to expect that they might do the very thing which the little girl did do. When a motorist drives his automobile at a speed of fifteen miles an hour 18 inches from the curb line immediately behind which a seven-year-old child is standing, to his knowledge, within plain view, the question of his negligence should be left to the jury.

What does the ordinarily reasonable and careful motorist do when he is driving his car along a highway and he sees school children of various ages going to or from school ahead of him on his side of the highway? Why, he sounds his horn and pulls as far to the left as the traffic conditions will permit him. That is what a careful driver would do; but this defendant, instead of doing that, attempted to "squeeze" by, as the little girl said, although there is nothing to indicate that there were any cars approaching from the east which prevented him from pulling to the left towards the middle of the paving. I dare say that if, in the place of the children, a cow or a horse or a hog had been standing, the defendant would not have driven within 3 1/2 feet of its position. These children were entitled to as much consideration.

If the defendant had seen a drunken man walking unsteadily toward him, or a blind man feeling his way along the pavement toward him with a cane, and he had driven as closely to either as he did to this seven-year-old child, would there be any question in the mind of any reasonable man of his negligence? I think not. I feel very seriously that the jury should have been permitted to pass upon the issues in this case. To my mind, it cannot be said that all reasonable minds must agree that the defendant was not negligent under the record in this case.

The defendant further testified, from the time he saw her coming out until she came in contact with the car, "It was about a second." He may perhaps have been mistaken as to just how long it was, but he also may have been mistaken when he said that she jumped in front of the car when he was but five feet away. If we accept his last statement as true, we must also accept his first statement that a second elapsed between the time he saw the plaintiff and when he struck her. If he was going fifteen miles an hour, which he states was his speed, — and, without question, he gave himself the benefit of every doubt in his favor, — he was traveling 22 feet in a second. If he was able to and did stop the car within 15 feet, the jury should at least say why he didn't stop it within the 22 feet that elapsed in that second; and his own testimony discloses that he put on the brake just as soon as he saw her step from the curbing.

I would reverse.