[1] About 6 p.m. on September 14, 1943, decedent came in contact with defendant's truck at the intersection of U.S. Highway 69 and West Street in Davis City (population about five hundred), Decatur county. No. 69, paved to a width of eighteen feet, extends southwest and northeast at this point. About one-fourth block to the south the Chicago, Burlington Quincy railroad tracks parallel No. 69. West Street, which is graveled, runs north and south across the highway and the railroad tracks. It is fifty feet wide but where it intersects the north side of the pavement it widens out in a rounding curve to the east and west.
Decedent, six years and one day old, lived with his parents and two brothers in the third house about a half block north of the intersection on the west side of West Street. Emmit Still, decedent's great uncle, lived at the northwest corner of the intersection. Roy, the decedent, slept with this uncle and there was a strong attachment between the two. Still was a railroad section hand, due home from work about 6 p.m.
Just before the accident Roy and his brother, fourteen months younger, heard the motorcars carrying the section workers, left their home and ran south in West Street to meet their uncle. At or somewhat north of the north edge of the pavement, Roy came in contact with defendant's truck, traveling southwest on No. 69. He received an injury to his head from which he died two days later without regaining consciousness. Roy's mother, as administratrix, brought this action for the damage to his estate. Trial to the court resulted in judgment for $3,250.
I. Upon this appeal defendant contends the evidence of negligence is insufficient; that decedent suddenly darted out from a place of concealment or a place remote from the line of travel and the accident was unavoidable. We think, however, there is sufficient evidence of defendant's negligence. Of course, *Page 81 it is our duty to view the testimony in the light most favorable to plaintiff. We will briefly review the evidence in such light.
Defendant is a trucker, twenty-six years old, who was thoroughly familiar with this intersection. He knew Roy and his two brothers and frequently saw Roy playing around the Hampton home when he passed there. When defendant got within one-fourth mile of the intersection he could see it. The view of the intersection was not obstructed at any place within that quarter mile.
As defendant approached West Street from the east the section men were returning from their work on a motorcar and trailers traveling east on the railroad. Defendant looked toward the section gang, laughed, and waved at them. Highway 69 does not cross the railroad, so the safe operation of his truck did not require defendant to look toward the railroad. There was no other traffic on No. 69, except a car that followed defendant at a distance of about three hundred feet. Defendant admits he never saw Roy, his brother, or the large dog that was with the boys, until he had driven about two hundred feet beyond the intersection. He then stopped when one of the section men waved and screamed at him. That is the first he knew there had been an accident. Defendant was driving about twenty-five miles per hour. He did not slacken his speed nor change his course.
While there is evidence of weeds and bushes east of West Street, north of the intersection, there is substantial testimony that defendant had an unobstructed view not only of the intersection but of West Street for one hundred fifty feet north of No. 69. The driver of the car that followed defendant's truck, a witness for defendant, said, on cross-examination:
"I saw this little boy coming towards the pavement and I was back 300 or more feet from this intersection at that time. I saw the dog with him * * * and realized there was liable to be a collision. * * * There was nothing that I saw there ahead of the truck driver that would prevent him seeing the child and stopping."
Plaintiff testified there was an unobstructed view of the *Page 82 intersection and of West Street for one hundred feet to the north from three blocks east on 69. Emmit Still testified:
"At a point six or seven hundred feet east of the place where this little boy was hit he could be seen 150 feet anyhow north of 69 * * * There would be no place between six or seven hundred feet east of the crossing that he couldn't be seen for 150 feet north of that crossing and all the space in between."
There is testimony that soon after the accident defendant said he was reckless because he was looking over at the section workers and never saw the little boy; that he was not paying attention at the time where he was driving. The inference from this is that the reason defendant did not see decedent is that his attention was needlessly diverted toward the railroad workers — not that his view was obstructed.
Plaintiff testified that when the boys left their home she said, "Don't run out on the pavement." Both plaintiff and Still, who said they saw the fatal accident, testified in effect that the boys did not run fast and were about in the middle of West Street when Roy was injured. There is substantial evidence that: Roy was two to three feet north of the paved portion of 69 when the truck came in contact with him; the outside dual wheel of the truck was on the shoulder north of the pavement; Roy's head was struck by a bolt which projected from the right front corner of the truck box; Roy was not looking back to the north at the time; just before the accident, decedent threw up his hands.
From the foregoing it is apparent the trial court was justified in finding defendant negligent in not keeping a sufficient lookout and not seeing the child. Of course, defendant was bound to exercise reasonable care to maintain a lookout. The duty to look implies the duty to see what is plainly visible. Ege v. Born, 212 Iowa 1138, 1144, 236 N.W. 75. The court was warranted in concluding this little boy was plainly to be seen. That defendant needlessly diverted his attention to the railroad workers does not excuse his failure to observe decedent. Dearinger v. Keller, 219 Iowa 1, 3, 257 N.W. 206, and cases cited; 5 Am. Jur. 599, section 167. *Page 83
Defendant was under the duty to exercise reasonable care not only in maintaining a lookout but also in operating his truck so that he might avoid striking decedent. Rebmann v. Heesch,227 Iowa 566, 579, 288 N.W. 695; Pazen v. Des Moines Transp. Co.,223 Iowa 23, 30, 272 N.W. 126. The court was also justified in finding defendant negligent in not operating his truck so that the accident could have been avoided. Defendant testified he could have stopped his truck at the speed he was driving within about fifteen feet. A finding would be proper that the accident would not have occurred if the truck had been turned slightly to the left. Under this record it was a question of fact for the court to decide whether defendant was negligent in not stopping or changing his course.
See, as supporting our conclusion on the sufficiency of the evidence, Paschka v. Carsten, 231 Iowa 1185, 3 N.W.2d 542; Luse v. Nickoley, 231 Iowa 259, 1 N.W.2d 205; McMahon v. Rauch,230 Iowa 674, 298 N.W. 908; Lenth v. Schug, 226 Iowa 1, 281 N.W. 510, 287 N.W. 596; Darr v. Porte, 220 Iowa 751, 263 N.W. 240; Webster v. Luckow, 219 Iowa 1048, 258 N.W. 685.
[2] Since decedent was but six years old it is presumed he was free from contributory negligence. We need not consider whether this presumption is conclusive. See Paschka v. Carsten, supra; Brekke v. Rothermal, 196 Iowa 1288, 1295, 196 N.W. 84; 38 Am.Jur. 888, 890, section 205; annotation 107 A.L.R. 4, 114.
Cases upon which defendant relies do not conflict with our conclusion. They hold that a motorist is not liable for injury to a child who unexpectedly darts out from a concealed place (as, for example, behind a parked car between intersections) into the path of the vehicle, so that injury could not be avoided by the exercise of reasonable care. Among such cases are Mowrey v. Schulz, 230 Iowa 102, 296 N.W. 822; McBride v. Stewart, 227 Iowa 1273,290 N.W. 700; Chipokas v. Peterson, 219 Iowa 1072,260 N.W. 37, 113 A.L.R. 524, and annotation 528, 545.
[3] II. Defendant contends there was error in denying him a jury trial. The court ruled there was no demand for a jury trial in accordance with Rule 177 (b), Rules of Civil Procedure, therefore such a trial was waived under Rule 177 (a), and the *Page 84 trial should be to the court under Rule 178. The applicable parts of these Rules are:
"177. Demand for Jury Trial.
"(a) Jury trial is waived if not demanded according to this Rule * * *
"(b) A party desiring jury trial of an issue must file a written demand therefor, either by endorsement on his pleading, or within ten days after the last pleading directed to that issue. * * *
"178. To Court or Jury. All issues shall be tried to the Court except those for which a jury is demanded."
No written demand for a jury trial was filed by endorsement on any pleading or otherwise and the Rules were not strictly complied with. Defendant contends, however, he did make a timely demand for a jury and that plaintiff's counsel waived his right to have the case tried to the court and is estopped to object to a jury trial.
The petition and answer were filed in November 1943. On February 16, 1944, plaintiff filed an amendment to her petition, which amplified some of the specifications of negligence in the original petition and stated that certain expense totaling $141.50 had been incurred for a doctor, a hospital, and an undertaker. The case came on for trial on March 1, 1944. The jury panel was present and the judge had assumed there would be a jury trial. He stated that he assumed a proper demand for such trial under the Rules had been made. When the court asked plaintiff's counsel if he was ready to proceed with the trial, counsel stated there had been no demand for a jury and under Rule 177 the trial should be to the court.
Defendant's counsel then orally moved the court to permit a jury trial because: Rule 177 had been in effect only eight months and defendant was surprised by a strict application of the Rule; the Rules were unconstitutional and void because not enacted by the legislature; both parties recognized that the case was in the jury assignment, and the jury panel was present, ready to try the case. Plaintiff's counsel then stated that he denied the case was in any jury assignment by plaintiff's consent *Page 85 or conduct; denied that plaintiff had done anything to waive Rule 177, or to give defendant any right to a jury trial, but that she had insisted all the time the case was not one for the jury because no proper demand for a jury had been made. The motion of defendant's counsel and statement of plaintiff's counsel were taken down by the court reporter as part of his report of the trial. The court then made the ruling denying a jury trial. Trial to the court was had and most of the evidence was taken that same day.
Soon after the trial started, defendant's counsel inquired of opposing counsel if he had an amendment on file and stated he had not been served with a copy of it. Apparently the judge then removed from the court files the copy of the amendment to the petition and handed it to defendant's counsel. When court convened the next morning, after most of the evidence had been taken, defendant's counsel dictated into the record: "Let the record show that the original answer * * * be adopted as the answer to the Amendment to the Petition, with the same force and effect as to the original petition." Plaintiff's counsel stated, "That is all right with us." Attached to defendant's motion for new trial is an affidavit of each of defendant's counsel that the clerk never mailed or delivered to him the copy of the amendment as provided by Rule 82 of Rules of Civil Procedure and that he had no knowledge of the amendment before the trial was in progress. (Rule 82 in this respect does not greatly differ from section 11125, Code, 1939, previously in effect.)
The motion for new trial, supported by affidavit of one of defendant's counsel, also states that: On January 24, 1944, at the commencement of the January term, the case was assigned for trial to a jury on February 9, 1944, "by mutual request, agreement and acquiescence" of "one of plaintiff's counsel" and affiant, who were present in court; the court reporter, under the court's direction, then prepared an assignment of cases for jury trial, copies of which were available to attorneys, showing the case as fifth on the list; the case was continued to February 23d by agreement of counsel, and again to March 1st at the request of plaintiff's counsel because of illness of one of plaintiff's counsel; the case was the only one assigned for March 1st and the jury panel was recalled for the purpose of trying the case. *Page 86
There was a written resistance to the motion for new trial, supported by affidavits of plaintiff and each of her attorneys, Martha Hoffman of Hoffman Carter, who brought the suit originally, O.M. Slaymaker, R.E. Killmar, and D.D. Slaymaker. A transcript of record appearances certified by the clerk of the lower court, which has been filed with us, states that Mr. Carter, the other member of the firm of Hoffman Carter, at the time of trial was in the service of the United States and was not present. This resistance denies the above statements in the motion for new trial regarding the assignment of the case, states that neither plaintiff nor any of her attorneys asked for a jury trial, did anything to agree to one or acquiesced in the calling of any jury or putting the case in such an assignment, and denies that the case was in the jury assignment or that they agreed to such an assignment.
Unless we are to ignore Rules 177 and 178 the denial of a jury trial does not entitle defendant to a reversal. The Rules preserve the right of jury trial in all cases in which it previously existed but provide that such a trial is waived if not demanded according to Rule 177. Incidentally, a statute in force from the Revision of 1860 until the Rules took effect provided that a jury trial could be waived. Section 11519, Code, 1939. See Vaux v. Hensal, 224 Iowa 1055, 1058, 277 N.W. 718; Shores Co. v. Iowa Chemical Co., 222 Iowa 347, 268 N.W. 581, 106 A.L.R. 198.
Under Rule 177, if either party desired a jury trial of the issues raised by the petition and answer he was required to file a written demand therefor, either by endorsement on his petition or answer or within ten days after the answer was filed. The answer was the last pleading directed to those issues. Waldo Theatre Corp. v. Dondis, D.C., Maine, 1 F.R.D. 685, 687. No demand of any kind for a jury was made within that time. Defendant has offered no excuse for his failure to make such demand. It is not even shown that defendant's attorneys were not aware of the requirements of the Rule. The failure to make such demand operated as a waiver of a jury trial on the issues raised by the petition and answer. Rule 177 (a); Waldo Theatre Corp. v. Dondis, supra; Munkacsy v. Warner Bros. Pictures, D.C., N.Y.,2 F.R.D. 380. *Page 87
It is doubtful if the amendment to plaintiff's petition stated any new issue unless it was the allegation that decedent incurred medical and hospital expense of $91.50 and burial expense of $50. The most that can be claimed in this action on this $50 item is interest thereon during the time decedent probably would have lived. Davidson v. Vast, 233 Iowa 534, 543, 10 N.W.2d 12, 17, and cases cited. The right of the estate rather than the father to recover for these items of expense is at best questionable. See section 10986, Code, 1939; Carnego v. Crescent Coal Co.,164 Iowa 552, 554, 146 N.W. 38, Ann. Cas. 1916D, 794. The amendment did not change the prayer of the petition.
But, assuming the amendment stated some new issue not found in the petition, either party could file a written demand for a jury trial on that issue by endorsement on the amendment or within ten days after the last pleading directed to that issue. Waldo Theatre Corp. v. Dondis, supra, D.C., Maine, 1 F.R.D. 685, 687; Lader v. Dahlberg, D.C., N.Y., 2 F.R.D. 49, 50; Mealy v. Fidelity Nat. Bk., D.C., N.Y., 2 F.R.D. 339; Munkacsy v. Warner Bros. Pictures, supra, D.C., N.Y., 2 F.R.D. 380. See, as bearing on this question, In re Estate of Hermence, 235 Iowa 745, 748,15 N.W.2d 905, 907. But neither party demanded a jury trial of any new issue raised by the amendment and defendant never indicated that he desired a jury trial of anything except the main issues raised by the petition and answer.
Defendant argues to us that the filing of the amendment on February 16th revived the time for demanding a jury trial on all issues in the case and that such time had not expired at the commencement of the trial because defendant had not answered the amendment. No such contention was made in the court below prior to the filing of defendant's motion for new trial, eight days after the trial, although not later than soon after the trial commenced defendant knew of the unanswered amendment. But the argument cannot be sustained in any event. See authorities last above; also, Holtzoff, New Federal Procedure and the Courts, 109. To adopt defendant's contention would mean that a party could at any time demand a jury trial of all issues in the case by the simple expedient of filing an amendment to his pleading *Page 88 and making such demand within ten days after the last pleading directed to the amendment.
[4] But, defendant argues, plaintiff's counsel agreed that the case be assigned for trial to a jury and thereby waived Rules 177 and 178. As stated, an affidavit of one of defendant's counsel attached to the motion for new trial supports defendant's claim in this regard. Such a claim cannot be established in this manner.
Rule 245 provides that a motion for new trial, if based on ground (b), (c), or (g) of Rule 244, may be sustained and controverted by affidavits. Grounds (b) and (g) are clearly not involved here. Ground (c) of Rule 244 is, "Accident or surprise which ordinary prudence could not have guarded against." At best, it is doubtful that the claim asserted falls within this ground. Only the three grounds of a motion for new trial, now stated in Rule 244 (b), (c), and (g), may be sustained by affidavit. Feister v. Kent, 92 Iowa 1, 9, 60 N.W. 493. Rules 244 and 245, insofar as applicable here, introduce nothing new but are identical in spirit and almost in letter with like provisions of sections 11550 (paragraphs 2, 3, and 7) and 11551, Code, 1939, previously in effect since the Revision of 1860.
Even if defendant's claim regarding the assignment of the case was one of "accident or surprise which ordinary prudence could not have guarded against," and if we were to disregard Code section 10922, which we will later mention, we would not be justified in finding that the case was assigned for jury trial "by mutual request, agreement and acquiescence" of counsel for both parties as alleged by defendant. This claim was vigorously denied by plaintiff's counsel and such denial was supported by affidavits. No proof was offered to sustain defendant's allegations other than the affidavit attached to his motion. The trial court, which had more knowledge concerning the assignment than we have, found against defendant on his claim. We have repeatedly held that where conflicting affidavits are presented in connection with a motion for new trial, the lower court is in a much better position to determine the facts than we are and we will not interfere. Hoegh v. See, 215 Iowa 733, 736, 737,246 N.W. 787; Spaulding v. Laybourn, 164 Iowa 277, 283, 145 N.W. 521; State v. McClure, 159 Iowa 351, 354, 140 N.W. 203, *Page 89 and cases cited; State v. Steen, 125 Iowa 307, 313, 101 N.W. 96. See, also, State v. Davis (Hale, C.J.), 230 Iowa 309, 312,297 N.W. 274, 275; 39 Am. Jur. 196, 197, section 198.
"It is only in exceptional cases that this court will consent to sit in judgment `upon the comparative veracity of counsel in matters which might easily have been removed from the possibility of doubt by making them of record or reducing them to writing.' Ronayne v. Hawkeye Com. Men's Assn., 162 Iowa 615 [144 N.W. 319]." Standard Oil Co. v. Marvill, 201 Iowa 614, 617,206 N.W. 37, 39.
Furthermore, we have held time and again that such an agreement as defendant contends plaintiff's counsel made regarding the assignment and continuance of the case cannot be established by affidavit of opposing counsel. This is the effect of section 10922, Code, 1939, in force in almost identical language since the Code of 1851, which reads:
"Authority. An attorney and counselor has power to * * *
"2. Bind his client to any agreement, in respect to any proceeding within the scope of his proper duties and powers; but no evidence of any such agreement is receivable, except the statement of the attorney himself, his written agreement signed and filed with the clerk, or any entry thereof upon the records of the court."
We have uniformly construed this statute, which is not superseded by the Rules of Civil Procedure, to prohibit proof by affidavit of opposing counsel of an attorney's agreement regarding a matter of procedure. Loter v. Metropolitan L. Ins. Co. (Miller, J.), 229 Iowa 1127, 1130, 1131, 296 N.W. 227, 229, and numerous cases cited; Standard Oil Co. v. Marvill, supra,201 Iowa 614, 616, 206 N.W. 37; Whitlock v. Wade, 117 Iowa 153, 156,90 N.W. 587; Sapp Lyman v. Aiken, Underwood Co., 68 Iowa 699,701, 28 N.W. 24. We have so held even where no showing was made counter to the affidavit. Searles v. Lux, 86 Iowa 61, 66,52 N.W. 327, 328, from which we quote with approval in Loter v. Metropolitan L. Ins. Co., supra.
Defendant also argues that the court in its discretion could *Page 90 have granted a jury trial even though his demand was not timely and even though plaintiff did not waive Rules 177 and 178, and that there was an abuse of discretion here. Without determining whether a jury trial may not be had under certain circumstances, even though no demand is made for it according to Rule 177, we are not inclined to sustain this contention here. The Rules contain no provision similar to Federal Rule 39 (b) that "notwithstanding the failure of a party to demand a jury * * * the court in its discretion upon motion may order a trial by a jury of any or all issues." 8 Federal Code Ann., App., 727. We are asked to read such a provision into Rules 177 and 178, heretofore quoted so far as applicable here.
Aside from the above, defendant made no demand for a jury prior to the time trial was about to start. In making that demand, his counsel observed, "I assume the court would have to find that I was too late." It was not then contended there had not been a total failure to comply with the Rules in making the demand. As stated, the contention now made that the demand was timely because of the filing of the unanswered amendment was not suggested below until the motion for new trial was filed, although defendant knew of the amendment soon after the trial commenced. A finding of abuse of discretion in denying a jury trial because of the manner in which the case was assigned for trial is not justified upon the showing made.
[5] III. Defendant argues that the trial judge erred in making an inspection of the scene of the accident, because no rule or statute authorized it and the parties did not consent thereto, and that he also erred in considering information thus obtained as evidence.
On the second morning of the trial the court announced that it had visited the scene of the accident the day before and revisited it that morning when it made a thorough examination of the surroundings; that it did this to be able to better apply the testimony. Defendant's failure, during the progress of the trial, to object to what the court had done might well be held to amount to consent. See, as bearing on this question, 64 C.J. 109, section 112; State v. Christiansen, 231 Iowa 525, 527,1 N.W.2d 623, 624, and case cited; Brenton State Bk. v. Heckmann, 233 Iowa 682,685, 7 N.W.2d 813, 815, and citations. *Page 91
Rule 194 authorizes the court, when it deems proper, to direct the jury to view any real or personal property or any place where any material fact occurred. Section 11496, Code, 1939, which the Rule supersedes, contained a similar provision except that it made no mention of personal property. Code section 11581 states that the provisions of chapter 496 (including section 11496) relative to juries are intended to be applied to the court when acting as a jury on the trial, so far as they are applicable and not incompatible with other provisions in the chapter. However, the Rules seem to contain no provision similar to Code section 11581. We think, however, even in the absence of rule or statute the trial court had the inherent right to view the scene of this accident to enable it to better apply the testimony, if it deemed it proper to do so. Mason v. Braught, 33 S.D. 559, 146 N.W. 687,690, and cases cited; 64 C.J. 1200, 1201, section 1005.
The trial judge had no right to consider his observations at the scene as evidence nor to base the judgment thereon. But the record fails to show that the judge so considered his observations at the scene or that the judgment is not based on the evidence. Where it is claimed jurors are guilty of misconduct in making an unauthorized view of the scene, prejudice will not be presumed but must affirmatively appear. Johnson v. Des Moines City Ry. Co., 201 Iowa 1044, 1049, 207 N.W. 984. The same rule should apply here. — Affirmed.
OLIVER, BLISS, WENNERSTRUM, and SMITH, JJ., concur.
MANTZ, J., and HALE, C.J., and MILLER and MULRONEY, JJ., dissent from Division II.