Newton v. Cox

WORKS, J.

These two actions were brought to recover damages arising from a collision of automobiles. The respective plaintiffs were husband and wife. They were driving together in a Hupmobile which was struck by a Cadillac car driven by defendant. The two actions were consolidated

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for hearing in the trial court and they are presented together on this appeal. In the disposition of the appeal they may be considered as if there were but one action, instead of two. The plaintiffs each had judgment and the defendant appeals.

The only contentions upon which a reversal is asked are these: It is claimed that a motion for nonsuit which was made and denied should have been granted. It is insisted that the evidence was insufficient to support the verdict, for the trial was had before a jury. It is contended, under both these heads, that the evidence showed that appellant was not negligent and that respondents were guilty of contributory negligence, or, if those claims are not justified, that the evidence shows negligence on both sides and that therefore respondents should not have recovered, as the doctrine of comparative negligence does not obtain in this state.

The accident which gave rise to the litigation occurred at the intersection of thoroughfares known as Grand Avenue and Seventeenth Street. The former ran north and south and the latter ran east and west. Respondents were driving north on Grand and appellant was proceeding east on Seventeenth. The collision occurred in the northeasterly quarter of the intersection, where the Cadillac, appellant’s car, struck the Hupmobile, respondents’ car, near its rear and upon the left rear fender. Respondents’ vehicle was overturned by the impact. There were trees on the property at the southwest corner of the intersection, but they were so placed that they did not interfere with an unobstructed view by appellant of the part of Grand from which respondents came, or by respondents of the part of Seventeenth from which appellant came; that is, there was, so far as the trees were concerned, an unobstructed view for all parties at such a distance back from the intersection that both cars, if they had been driven at a proper rate of speed, and the drivers had seen each other, could have been stopped before the intersection was reached. A Franklin automobile was approaching the intersection along Seventeenth immediately preceding the accident, and it was coming from the same direction from which came appellant’s car. Respondent Blanche Newton testified: “My husband was driving about his usual rate of speed on the highway; he usually travels between 25 and 30 miles. . . . Away báck