Hedges v. Conder

MOORE, Justice

(dissenting).

I respectfully dissent.

I. The majority adopts defendant’s contention that under the provisions of Code section 321.328 and section 30-33.01 of the Des Moines Municipal Code a person in the street not in a crosswalk in a business district is negligent as a matter of law and the jury should be so instructed. I disagree with such a holding under the facts here.

I agree that violation of a law of the road, including valid city ordinances, without legal excuse, is negligence per se with the one exception, not applicable here, as established by our oft-cited case of Kisling v. Thierman, 214 Iowa 911, 915, 916 , 243 N.W. 552, 554 .

Section 30-33.1 provides: “No pedestrian shall *cross a roadway other than in a crosswalk in any business district.” (Emphasis added).

Code section 321.328 provides: “Crossing at other than crosswalk. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an ttnmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway except that cities and towns may restrict such a crossing by ordinance.” (Emphasis added).

These provisions are clearly limited to prohibiting jaywalking. They certainly do not prohibit a person stepping into the street to enter on the driver’s side of a parked car, alighting from a bus and walking to the curb at a place other than a crosswalk, standing or walking in or along the edge of a roadway or perhaps standing near a disabled vehicle. Other statutes and ordinances may prohibit such walking or standing but we are here considering only the duty prescribed under the provisions of Code section 321.328 and ordinance 30-33.01.

Defendant alleged and had the burden of proving plaintiff was violating these provisions. The evidence is undisputed plaintiff was not crossing a roadway. He was in the roadway for the limiting purpose of assisting a fellow employee in backing a truck into the east lane of Keo and avoiding an accident. He neither intended nor attempted to “cross a roadway”. He was not in the process of jaywalking.

I do not strongly disagree with the cases cited by the majority. They are factually distinguishable. In Stewart v. Hilton, 247 Iowa 988 , 77 N.W.2d 637 , plaintiff was admittedly walking wih her sister across a street in Toledo.

In Nugent v. Quam, S.D., 152 N.W.2d 371 , plaintiff, an elderly man, had left a supermarket carrying groceries and was almost across the street when struck by defendant’s vehicle. Plaintiff admitted he was crossing the street.

In Newton v. Thomas, 137 Cal.App.2d 748 , 291 P.2d 503 , there was a conflict of evidence as to whether plaintiff’s decedent had left the parked car near which he was standing in the street and started walking across the street to a cafe where he intended to go: The court held the question of whether he was crossing the street when struck by defendant’s vehicle was for the *859 jury. The court refused to hold plaintiff’s decedent was negligent as a matter of law under an ordinance similar to 30-33.1. At page 511, 291 P.2d, the court states: “We cannot say, as defendants ask us to do, that as a matter of law the evidence shows decedent when hit was in the act of crossing the street. A mere intention to cross is not a crossing. See Kuist v. Curran, 116 Cal.App.2d 404, 409 , 253 P.2d 681 . Nor can it he said that a person standing in the street is crossing it. See Dennis v. Gonzales, 91 Cal.App.2d 203, 206 , 205 P.2d 55 .”

In Hocking v. Rehnquist, 100 Ill.App.2d 417 , 241 N.E.2d 337 , plaintiff was standing on the roadway beside his wife’s car which was parked on the highway’s shoulder when he was struck by defendant’s truck. The court held there was no evidence tending to show plaintiff was crossing the road and the lower court erred in giving defendant’s requested instruction to the effect a pedestrian not crossing in a marked or unmarked crosswalk must yield to approaching vehicle. The Illinois court did not hold plaintiff in standing in the roadway was negligent as a matter of law. Its holding was that the statute was not applicable under the facts shown. As pointed out by the majority opinion, the court said: “In so far as. defendants were concerned, plaintiff was simply a man standing either on or at the edge of the main travelled portion of the highway.”

In Myhre v. Peterson, 233 Or. 470 , 378 P.2d 1002 , plaintiff, a railroad employee, had walked across Front Street in Salem and delivered a message to a fireman on a locomotive and was returning to the curb when struck by defendant’s car. The railroad ran down Front Street. Plaintiff had crossed the street as far as possible with the train present and contended he was returning within the crosswalk of the intersecting street. The court held plaintiff was entitled to have the issue of his right of way submitted to the jury. The court observed “the legislature, which presumably knows that trains do run on streets of our cities, did not choose to make an exception in that regard, the court cannot do so.” In other words the court held the area between the curb and railroad was a roadway within the statute. We have no such unusual facts or such a presumption in the case at bar.

The two California cases cited in the quote from Newton v. Thomas, supra, hold contrary to the majority opinion here. In Kuist v. Curran, supra, 116 Cal.App.2d 404 , 253 P.2d 681 , the court held a newspaper vendor standing in the middle of a six-lane highway was not in the process of crossing the street and it was error to instruct the vendor had a duty to yield the right of way to defendant’s automobile.

The record here discloses without any dispute plaintiff had no intention to1 cross the roadway. In submitting the question of plaintiff’s negligence for violation of Code section 321.328 and ordinance 30-33.1 the court gave defendant more than he was entitled to. Under the facts that issue should not have been submitted to the jury but as to defendant it was without prejudice. o

II. Several witnesses estimated defendant’s speed in excess of the 25-mile per hour limit. Defendant admitted he was going 25 or more. Some witnesses estimated defendant’s speed as high as 35. The skid marks of defendant’s vehicle were at least 46 feet long.

I agree the foundation laid for the opinion testimony of Doctor Brown should have been more complete. His testimony, however, was cumulative and the receipt thereof, in my opinion, is not so prejudicial as to require a reversal.

A perfect trial is not possible. Defendant had a fair trial.

I would affirm.

LARSON and BECKER, JJ., join in this dissent.