Albert v. Maher Bros. Transfer Co.

• Decision Date: 24 June 1932
• Docket Number: No. 41410.,41410.
• Citation: 215 Iowa 197,243 N.W. 561
• Parties: ALBERT v. MAHER BROS. TRANSFER CO.
• Court: Iowa Supreme Court

215 Iowa 197

243 N.W. 561

ALBERT

v.MAHER BROS. TRANSFER CO.

No. 41410.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Johnson County; H. D. Evans, Judge.

This action was commenced by the plaintiff to recover damages from the defendant for the personal injuries to the former and his assignors, arising out of an automobile accident. A jury returned a verdict for the plaintiff in the sum of $1,410.05. Judgment was entered accordingly, and the defendant appeals.

Affirmed.

Frank F. Messer, of Iowa City, for appellant.

Dutcher, Walker & Ries, of Iowa City, for appellee.

KINDIG, J.

On November 24, 1929, the plaintiff-appellee, E. N. Albert, was driving a Studebaker sedan on primary highway No. 161 from Iowa City to Cedar Rapids, en route to Marshall-town. Riding with appellee at the time were his wife, Mrs. Nell Albert, his stepdaughter, Mrs. Madge Pursel, and his mother-in-law, Mrs. Anna Crimmons. Mrs. Madge Pursel was in the front seat of the Studebaker sedan with the appellee, and Mrs. Albert and her mother, Mrs. Crimmons, were riding in the back seat thereof.

When appellee arrived at a reverse curve about 12 miles north of Iowa City, he met, and collided with, a truck belonging to, and being operated by, Maher Brothers Transfer Company, defendant and appellant. This truck was traveling toward Iowa City. It was towing a Hudson coupé belonging to H. W. Stimmel. The truck was being driven by Mike Maher, an employee of the appellant. Ray Cambridge, another employee of appellant, and one William Werker, an employee of the aforesaid H. W. Stimmel, were riding on the truck at the time with the driver, Mike Maher. Accompanying Mr. Stimmel in the towed Hudson coupé were Mrs. Stimmel and a child. Apparently the truck and not the towed car caused the collision.

Previous to the collision on November 24, 1929, the truck traveled from Iowa City to Maynard for the purpose of transferring from there to Iowa City the household furniture of the Stimmels. Mr. Stimmel and his wife and child started to drive in the Hudson coupé from Maynard to Iowa City. At Oelwein, however, the Hudson coupé developed engine trouble, and consequently the truck towed it from there to the point of collision with appellee's Studebaker sedan. Apparently the collision occurred at about 7:45 p. m. Both the truck and Studebaker sedan had their headlights turned on because on that November night it was dark.

As a result of the collision, both the Studebaker sedan and the truck were damaged, and appellee's wife, daughter, and mother-in-law received personal injuries. So, appellee's wife, daughter, and mother-in-law assigned to him their respective claims for their personal injuries, and on March 14, 1930, the appellee commenced this action against the appellant to recover $7,220.10.

Appellee's petition was divided into four counts. Count 1 asked for $220.10 on account of the damages to the Studebaker sedan. In count 2 the appellee asked $1,000 because of the personal injuries sustained by his wife. By count 3 the appellee sought to obtain $1,000 because of the personal injuries caused his daughter. And through count 4 appellee demanded $5,000 on account of the personal injuries received by his mother-in-law. Two grounds of negligence, generally speaking, are alleged by appellee in his action against the appellant. These grounds are: First, that the appellant's truck was operated on the wrong, or left, side of the road; and, second, that the truck was being operated at a high and dangerous rate of speed.

Appellant filed an answer containing a general denial, and the specific allegation that the appellee's negligence at the time was the sole and proximate cause of the accident. Then, by way of counterclaim, the appellant demanded from appellee $346.89 for damages to the truck and the loss of the use thereof. It is said by the appellant that the appellee committed three acts of negligence in producing the collision. They are: First, in operating the Studebaker sedan on the wrong, or left, side of the road; second, in operating the Studebaker sedan at a high and excessive rate of speed; and, third, in failing to exercise due care, caution, and circumspection in operating the Studebaker sedan.

When the cause was submitted to the jury, that body returned a verdict in appellee's favor against the appellant for the sum of $1,410.05, allocated as follows: For damages to the Studebaker sedan, $210.05; for injuries to appellee's wife, $100; for injuries to appellee's daughter, $100; for the injuries to appellee's mother-in-law, $1,000. Judgment was entered upon the verdict, and the appellant appeals.

[1][2][3] I. At the outset, it is claimed by appellant that the district court erred in instructing the jury on the question of contributory negligence. This error, the appellant contends, arose because the district court in effect told the jury that contributory negligence, to defeat a recovery, must amount to a proximate cause.

Underlying appellant's complaint is the thought that the district court failed to tell the jury that contributory negligence which will defeat recovery is that negligence which contributes to the damage “in any degree or in any way.” While it is true that the district court did not use the express terms “in any degree or in any way,” yet, when the instruction is read as a whole, the meaning thereof is the same as if those words had been employed. Appellant did not ask for an elaboration, and, under all the circumstances, he has no just ground for complaint. In Towberman v. Des Moines City Railway Company, 202 Iowa, 1299, 211 N. W. 854, this court declared: “It is well stated in Banning v. C., R. I. & P. R. Co., 89 Iowa, 74, at page 81, 56 N. W. 277, 279, where we said: ‘If the injured party contributed in any way, or in any degree directly to the injury, there can be no recovery.’ ” That quotation in the Towberman Case was selected after a review of many decisions. We made the selection because of our desire to present the quotation as a model for future instructions. Such model later has been followed and approved. Stilson v. Ellis, 208 Iowa, 1157, 225 N. W. 346;O'Hara v. Chaplin, 211 Iowa, 404, 233 N. W. 516. To avoid confusion or uncertainty it will be well for trial courts to carefully follow this model in the future.

Instead of using the word “contributing,” the district court in the case at bar employed the words “co-operating” and “instrumental.” These words, when properly utilized, signify the equivalent of contributing. Likewise, there is no basis for complaint because the district court declared that the negligence which will bar appellee's recovery must contribute directly to the injury or damage. It was said, as above indicated, in Towberman v. Des Moines City Railway Co. (202 Iowa, 1299, 211 N. W. 854), supra: “If the injured party contributed in any way, or in any degree directly to the injury, there can be no recovery.” (The italics are ours.) See, also, O'Hara v. Chaplin (211 Iowa, 404, 233 N. W. 516), supra; Stilson v. Ellis (208 Iowa, 1157, 225 N. W. 346), supra.

Under all the circumstances, therefore, there is no reversible error because of this instruction.

[4] II. Also a complaint is made by the appellant because the district court did not find, as a matter of law, that appellee's mother-in-law, Mrs. Anna Crimmons, was guilty of contributory negligence.

A directed verdict, appellant contends, should have been allowed by the district court on the count of appellee's petition seeking to recover for the personal injuries of this woman. The basis for this contention is that Mrs. Crimmons was paying no attention to the operation of appellee's car. She, it is said by appellant, had wholly abandoned her safety to the appellee. According to the record, Mrs. Crimmons was 78 years of age. At the time of the collision she was riding in the back seat of the Studebaker sedan. As before said, the night was dark, and the headlights on the automobiles had been turned on. Appellee's daughter said in her testimony that she, sitting in the front seat, saw appellant's truck approaching on the wrong side of the road and informed appellee, who was driving the Studebaker sedan. Furthermore, appellee says he saw appellant's truck as it approached around the curve, and when it was 75 or 80 feet from him he noticed, as his daughter spoke, that appellant's vehicle was on the wrong side of the road. Whereupon, appellee immediately turned the Studebaker sedan to the right as far as possible. Nevertheless the collision occurred. It was found by the jury that appellee committed no negligence. What, then, could Mrs. Crimmons have done under the circumstances to have prevented the accident? Mrs. Crimmons' position in the back seat of the Studebaker sedan, on the dark night, was not such, the jury could find, as to enable her to keep an outlook or in any way warn or assist the driver in operating the vehicle.

This court said upon a similar subject-matter in Bradley v. Interurban Railway Co., 191 Iowa, 1351, reading on pages 1353 and 1354, 183 N. W. 493, 494:

“With the first proposition that the invited guest or passenger is not absolved from his obligation to use reasonable care for his own safety, there is no room for dispute, but this is as far as the court can keep step with counsel. The leap from the statement of duty of reasonable care for one's own safety to the conclusion as a matter of law that the invited guest is negligent if he fails to see an impending danger in time to interfere and prevent it is entirely too far. The question as to what is reasonable care in such emergency is peculiarly a question for the jury.

Within reasonable limits the invited passenger in an automobile may reasonably and lawfully rely on the skill and judgment of the driver. He cannot physically interfere with the driver's control of the car without peril of disaster. He may, under proper circumstances, sound an alarm if he sees...