Heacock v. Baule

• Decision Date: 20 June 1933
• Docket Number: No. 41534.,41534.
• Citation: 216 Iowa 311,249 N.W. 437
• Parties: HEACOCK v. BAULE.
• Court: Iowa Supreme Court

216 Iowa 311

249 N.W. 437

HEACOCK

v.BAULE.^a1

No. 41534.

Supreme Court of Iowa.

Dec. 13, 1932.

As amended on Rehearing June 20, 1933.

Appeal from District Court, Dubuque County; P. J. Nelson, Judge.

An action for personal injury suffered by collision with an automobile. From a judgment entered on the verdict of the jury, the defendant appeals.

Reversed.Havner, Flick, Huebner & Powers and H. B. White, all of Des Moines, for appellant.

Kenline, Roedell, Hoffmann & Tierney, of Dubuque, for appellee.

ALBERT, J.

The plaintiff is the owner of land lying on both sides of a country highway extending from the city of Dubuque to Asbury. It is an improved highway, 59 feet from fence to fence, with a graveled grade, 24 feet wide on top. The south line of the grade is 7 feet from the south line of the highway, and the north line of the gravel is 28 feet from the north line of the graveled way. Plaintiff's farm improvements are on the north side of the highway and there is a gate on either side of the highway opposite each other. The highway is practically level except for a slight depression in the gravel about opposite these gates. The road which comes from the gate on the north side to the gravel is 9 feet wide and about 2 feet below the top of the gravel grade. On the south side the road from the gravel to the gate is approximately level, and from the depression west to the top of the hill, 256 feet, there is a rising grade of one foot. At a point 256 feet west, the road commences to decline on a 6 per cent. grade, or 6 to 100 feet. From the driveway of the road coming from plaintiff's gate on the north side of the gravel road, looking west, there is an unobstructed view for a little more than 256 feet. In going west, after passing the top of the hill, the road curves sharply to the north.

On the afternoon of May 6, 1930, the plaintiff was engaged, with a team of mules, working in a field on the south side of the road unrolling corn planter wire. His son, Allen, age 14 years, was engaged in harrowing with a team of horses. A rainstorm was threatening, and plaintiff drove his team into the barnyard on the north side of the road and unhitched them, and while so engaged, he discovered that his son was having trouble with his team and the horses were turning toward the harrow. It appears the wind was blowing and the horses were turning so as not to face it. On discovering the trouble his son was having with his team, the plaintiff started to his relief. He testified that he hurried, “walked fast and ran slightly.” When he neared the north edge of the gravel, within 4 or 5 feet thereof, he stopped, looked to the west and to the east, and saw no automobile or other conveyance on the highway in either direction. He passed on across the gravel road, and as he stepped from the gravel onto the adjoining territory, the car of the defendant “struck his rear foot,” breaking both bones of his left leg between the knee and the ankle. The defendant's automobile came from the west, and after striking the plaintiff, stopped some distance east and backed up, picked up the plaintiff and took him to defendant's residence, where he was taken care of by a doctor and later taken to a hospital and given medical care.

The undisputed evidence shows that defendant was the owner of the Dodge car which was being driven, under his direction, by Al Schmitt at the time the accident occurred.

At the time plaintiff was crossing the road, he says it was raining slightly and the wind was blowing, and by the time he was at the south side of the graveled portion of the road, it was raining hard.

[1] I. The first error relied upon by the appellant is that the accident was an inevitable one, therefore defendant is not liable. This question is raised for the first time in this court, and having failed to raise the same in the lower court, it cannot be reviewed by us.

[2] II. The next error assigned is that under the fact situation in the case, the plaintiff was guilty of contributory negligence as a matter of law. Without setting out the evidence, we conclude that under the record made, reasonable minds might disagree on this proposition, and therefore it was a question for the jury.

[3] III. Error is assigned in the giving of instruction 10, which reads as follows: “By a preponderance of the credible evidence is not necessarily meant the greater number of witnesses who may testify upon either side as to a given point, but the greater weight of the testimony, that is, the testimony which best satisfies your minds that it is true.”

In the case of Bryan v. Chicago, R. I. & P. Ry. Co., 63 Iowa, 464, 19 N. W. 295, we said on this question:

“The jury were directed that the burden rested upon plaintiff to establish the allegations of the petition by a preponderance of evidence, and in another instruction they were informed that she was required to prove her allegations “by a fair preponderance of evidence.' The court then informs the jury that ‘by the term “preponderance of evidence” is meant testimony of such superior weight and convincing force as satisfies the mind of its truth.’ This definition is clearly erroneous and misleading. * * * And, when a jury are informed that their verdict should accord with ‘the preponderance of evidence,’ they are simply directed that they should find for the party,...