Ackerman v. James

• Citation: 200 N.W.2d 818
• Decision Date: 19 September 1972
• Docket Number: No. 54984,54984
• Parties: Dexter ACKERMAN, As Next Friend of Steven Ackerman, and Individually, Appellants, v. Donald Lee JAMES, Jr., Appellee.
• Court: United States State Supreme Court of Iowa

Page 818

200 N.W.2d 818

Dexter ACKERMAN, As Next Friend of Steven Ackerman, and Individually, Appellants, v. Donald Lee JAMES, Jr., Appellee.

No. 54984.

Supreme Court of Iowa.

Sept. 19, 1972.

William C. Ball, Waterloo, for appellants.

Swisher & Cohrt, Waterloo, for appellee.

MASON, Justice.

This is a law action based on a negligence in which the trial court directed a verdict for defendant at the close of plaintiff's evidence. Plaintiffs appeal from the judgment entered thereon.

In one division of the petition Dexter Ackerman as next friend of his minor son claims damages for personal injuries sustained by the minor, a pedestrian, when struck by an automobile owned and being driven by defendant, Donald Lee James, Jr. In another division, Ackerman individually and as father of the minor seeks recovery for loss of his son's services during minority and for expenses incurred by him during that period by reason of the injuries.

Defendant in answer admitted ownership and operation of the motor vehicle involved, the striking of the minor at the time and place alleged and denied all other allegations. In separate divisions defendant pled as a further defense that the minor was negligent in specified particulars and that such negligence was a proximate cause of the injuries. Plaintiffs in reply denied this affirmative defense.

Before commencement of trial plaintiffs amended their petition seeking to rely upon the doctrine of last clear chance as a basis for recovery under each cause of action. Defendant moved to strike the amendment alleging the doctrine of last clear chance is without vitality and no longer applicable in view of the enactment of what is now section 619.17, The Code.

The change brought about by this enactment, effective July 4, 1965, provides that when defendant relies upon negligence of plaintiff as a complete defense or bar to plaintiff's recovery, defendant has the burden of pleading and proving negligence of plaintiff, if any, and that it was a proximate cause of the injury or damage.

Defendant's motion in resistance had not been ruled upon at the close of plaintiffs' case.

In one phase of its ruling directing a verdict for defendant, the court expressed the view the evidence established as a matter of law that defendant had sustained his burden of proving the minor's negligence was a proximate cause of the injuries and concluded reasonable minds could not differ on the question where defendant's vehicle was approaching in plain sight before the injured minor undertook to cross the roadway.

In the other phase of its ruling the court, in referring to defendant's motion to strike the doctrine of last clear chance as alleged by plaintiffs, stated: 'Without deciding the issue tendered by defendant's motion the court concluded that even if the doctrine of last clear chance were deemed to apply in this case the facts taken in the light most favorable to plaintiffs simply fail to make out a case for the use of the doctrine.'

Approximately 3:00 p.m. July 6, 1969, 15-year-old Steven Ackerman was crossing on foot to the west side of Black Hawk County Road E, a north-south road, at a point south of the south city limits of DeWar, when struck by defendant's north-bound automobile.

We are told in the record county road E approaches DeWar from the south and cuts a swath through rolling countryside. At the location of the accident there are two hills and their crests are one-quarter to one-half mile apart. Proceeding north to within 1200 feet of the accident scene, an automobile goes down the first or most southerly of the two hills and thereafter travels up the second hill a distance of about 700 feet to the scene of the accident, which was approximately 30 yards south of the crest of the second or most northerly hill.

The afternoon of the accident Steven Ackerman walked a quarter of a mile south from his home to the home of Glen Adamson. The two boys listened to records for a period of time at the Adamson home, then crossed the county road to the Niedermann residence where they were joined by Gene Niedermann, also 15.

There is a conflict in the testimony as to just what transpired during the short time spent at Niedermann's before the three boys decided to go back across the highway to the Adamson home. It had rained earlier in the afternoon and was misting at the time.

Steven testified that as he and the two boys started from the south side of the Niedermann house and went to the front, he was ahead of the other two; when he approached a point about six feet from the east edge of the highway, he turned his head and looked to the left and right, did not see or hear anything and proceeded to cross the highway at a northwest angle headed toward the Adamson driveway. Young Ackerman describes his pace at the time of going onto the highway as 'brisk,' a little faster than a steady walk but not quite a trot. He said when he was close to the centerline one of the boys yelled, 'Ackerman, a car,' he quickly turned and glanced to the south, saw defendant's automobile about ten feet away and was unable to move before being struck at a point about two or three feet west of the centerline. The paved portion of the highway at this point is an estimated 18 to 20 feet wide.

The Adamson and Niedermann boys were both Ackerman's friends at the time of the accident but since then they have had problems and Ackerman does not chum around with them any more.

Gene Niedermann, called as a plaintiffs' witness, testified he first saw Steven Ackerman around noon the day of the accident when Ackerman was walking from DeWar. Niedermann said he talked to Steven at the Adamson home before the three boys crossed the road to the Niedermann house before the accident. He testified there were firecrackers lit at the Adamson house and at the Niedermann house, that he lit a firecracker and Steven threw it in a puddle of water a few feet behind David Van Hyfte's car parked in the Niedermann driveway and that Steven then started for the highway without stopping.

Hereinafter in this opinion statements as to north and south distances relate to a common reference point located in the center of Niedermann's driveway.

As the three started back to the Adamson home Niedermann said his attention was directed to defendant's car by the sound of its horn when it was about 700 feet south. He estimated the car was then traveling 60 to 65 miles per hour. According to his version, Ackerman was on the highway at that moment east of the centerline but closer to that line than the east edge of the pavement. At the time Adamson yelled, 'Hey Ackerman, there is a car coming,' Steven was not quite across the yellow line. Niedermann said as the driver hit the car brakes, the car dipped at a point approximately 150 feet south. He placed the point of impact about a foot west of the centerline and the point where the James car came to rest approximately 120 feet north of the reference point.

Niedermann insisted neither he nor Adamson went onto the highway. He estimated Steven was about a foot west of the centerline when struck by the James car which was then traveling 45 to 50 miles per hour. The posted limit on the road involved is 60 miles per hour.

Plaintiffs offered parts of defendant's deposition. Rule 144, Rules of Civil Procedure. James described the day as overcast, it had either stopped raining or there was a very slight sprinkle and visibility was limited by the gray sky. Defendant estimated his speed at 50 miles an hour as he proceeded north on the DeWar blacktop to the scene of the accident. He was familiar with the area. When he was about 525 feet from the point of impact, James saw three boys walking toward the DeWar road approximately 10 feet from the edge of the asphalt, Ackerman being about two feet in front of the other boys. When he saw the boys approaching the highway, defendant let up on the accelerator and started to slow down. James maintains all three boys upon reaching the edge of the road began running to the west side.

When he was approximately 450 feet south, defendant honked his horn. All three boys stopped two to three feet from the centerline, turned their heads and shoulders, looked and faced him. All three turned to the left and started back at a half run to the east edge of the road toward the Niedermann driveway. Two of the boys went all the way back to a point about three feet off the road but Steven stopped about 'where your rights wheels would track in the east lane of the road, about two to two and a half feet from the east edge.' When about 175 to 200 feet from Ackerman defendant applied his brakes since he wasn't sure what Steven was going to do. Defendant claims Ackerman stopped about 50 to 60 feet away from the car which had then slowed to approximately 30 to 35 miles an hour, faced him and began a feinting motion shifting his shoulders and hips. Defendant then applied his brakes as hard as he could without locking them and turned to the left of the centerline. James testified that as Ackerman darted out in front of his car, he locked his brakes, turned the wheel to the right and his car started skidding. It struck Ackerman with its left front side and pushed him to the side of the road as the car slid about 20 feet past him.

Steven, as a witness, had denied hearing the horn or engaging in any feinting body motions as described by James.

David Van Hyfte, 18, had known Steven Ackerman two or three years. He was at the Niedermann home when Steven was there. His first knowledge of the accident was when Murilla Adamson came running around the corner of the house and said 'Steve got hit.' Van Hyfte went over to where Steven was lying in the ditch. James came across the road and said he was sorry and 'he didn't--he couldn't see him or something like that.'

A commercial photographer was called to identify the various pictures. Dexter Ackerman described the events after his arrival upon being notified of...