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Westman v. Bingham, 230 Iowa 1298, 300 NW 525 (1941). A 10 year old girl riding a bicycle on the road was struck by an overtaking automobile. The bicyclist was riding 5 or 6 feet from the right edge of the pavement on a 35 foot wide street and climbing a grade of about 4%. The bicyclist was struck by the right front fender of the car and died from her injuries. Judgment for plaintiff affirmed. "Appellants do not deny that it was Maxine Bingham's duty to use due care and caution to turn sufficiently far to the left when attempting to pass the bicycle. The trial court so instructed. The jury was told it was the duty of the driver to pass to the left of the bicycle at a reasonably safe distance. No complaint is made of this instruction. ... As above stated, this was the single charge of negligence submitted. The testimony of [eyewitness] Mrs. Rasmussen is that the bicycle went up the hill in a westerly direction. She observed no change in direction of the bicycle to its left or south. Mrs. Rasmussen was asked on cross examination: 'It (the bicycle) went on a straight course?' She answered, "As far as I saw it.' Neither Maxine Bingham nor any other witness testified that she saw the girl turn her bicycle to the south. Perhaps an inference to that effect is justified from Maxine's testimony that when she last looked before hearing the noise of the impact the bicycle was ahead and 6 feet to the right of her car and that the car did not thereafter turn to the right. But the jury was not bound to accept this testimony. If the bicycle continued in its westerly course, as the jury could have found, it is a logical and reasonable conclusion from this record that the cause of this collision was the failure of the driver of the car to use reasonable care to pass sufficiently far to the left to clear the bicycle.
"This paved street was 35 feet wide. No excuse is suggested why the car could not have been driven further to the south in the attempt to pass the bicycle. Mrs. Rasmussen testified the car was about in the center of the north half of the street at the time of the collision. Maxine admitted as a witness that it was not necessary for her to crowd over on the little girl. Appellant observed decedent pump her bicycle with at least some difficulty up the hill. Even if the evidence showed some variation in the course of the bicycle, it seems the jury could have found that reasonable care under the circumstances would require appellant to have allowed therefor. ..." |
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