I respectfully dissent.
The witness Dings testified: "* * * as he [appellant] started across the paving a car came from the south and he stepped back. However, I would say he glanced both ways before he started. * * * At the time he started I myself saw no cars coming from the north at all. However, about the time the car from the south went by two cars came over the knoll about a quarter of a mile, from the north."
On cross-examination, Dings said: "He hesitated momentarily before he stepped onto the pavement. He apparently looked both ways on the highway. His head kind of turned as if he was. Naturally I couldn't look at his eyes. I wasn't where I could see where his eyes were going. The movement of his head would naturally give anyone the impression that is what he was doing."
Appellant himself testified that the last he remembered was when he saw the car coming from the south. The next he remembered was waking up in the hospital the following day. The record does not support the majority's statement that appellant testified "he did not look after he entered the *Page 859 slab the first time." What appellant did say is "I don't recollect seeing the Burch car. I don't recollect looking to the north." Appellant's loss of memory is readily accounted for by his serious injuries from which he was confined for several months. Appellant did testify, however, that he walked straight east across the pavement at the intersection and at an ordinary gait of 3 1/2 to 4 miles an hour. Appellee offered no evidence.
Viewing the above record in the light most favorable to appellant, I think the issue of contributory negligence was for the jury. Appellant started directly across the street at an intersection when no car from the north was in sight. He did not cross diagonally nor between intersections. The jury could find that he looked to the north, as well as to the south, as he stepped onto the paving and could then see no car for a quarter of a mile to the north. There was no apparent danger from that direction. The record is silent as to whether appellant again looked to the north. However, he was not, under the circumstances, guilty of contributory negligence as a matter of law if he failed again to look or to see appellee's car which was traveling on the left side of the paving. He was not required to keep a constant lookout. The following, among other authorities, support this dissent: Swan v. Dailey-Luce Auto Co., 225 Iowa 89,281 N.W. 504; Huffman v. King, 222 Iowa 150, 268 N.W. 144; Robertson v. Carlgren, 211 Iowa 963, 234 N.W. 824; Read v. Reppert, 194 Iowa 620, 190 N.W. 32; Wine v. Jones, 183 Iowa 1166,1170, 162 N.W. 196, 168 N.W. 318.
In 5 Am. Jur. 886, 887, section 705, it is said:
"There is no imperative rule of law requiring a pedestrian under all circumstances to look for approaching automobiles before crossing a street or highway; * * * whether a pedestrian should have looked again, or continued to look, for automobiles while crossing a street or highway, depends on the circumstances and is a question for the jury."
I would reverse.
*Page 860BLISS, C.J., and OLIVER, J., concur in this dissent.