Bailey v. Fredericksburg Produce Ass'n, 45372.

• Citation: 295 N.W. 122,229 Iowa 677
• Decision Date: 10 December 1940
• Docket Number: No. 45372.,45372.
• Parties: BAILEY v. FREDERICKSBURG PRODUCE ASS'N.
• Court: Iowa Supreme Court

229 Iowa 677
295 N.W. 122

BAILEY
v.
FREDERICKSBURG PRODUCE ASS'N.

No. 45372.

Supreme Court of Iowa.

Dec. 10, 1940.

Appeal from District Court, Chickasaw County; T. H. Goheen, Judge.

An action for damages caused by a collision between plaintiff's automobile and a truck of defendant. There was a judgment for plaintiff on a verdict by a jury, from which defendant appeals.

Affirmed.

[295 N.W. 123]

Hallagan, Fountain, Steward & Cless, of Des Moines, and Sullivan & Scholz, of New Hampton, for appellant.

Geiser & Donohue, of New Hampton, for appellee.

BLISS, Justice.

The plaintiff, aged about sixty-three years at the time of the trial in December, 1939, had operated a general store and gas and oil station at Williamstown for over thirty years. Daniel Garey, a farmer boy about twenty-three years old, at different times had driven a truck for plaintiff. About 1:15 o'clock in the afternoon of November 10, 1938, the plaintiff and Garey left the plaintiff's store to drive to Waterloo, in the plaintiff's Pontiac coupe. Arriving in Waterloo, each of them went about their separate errands, after agreeing to meet at 4:30 o'clock that afternoon at the street corner near the Paramount Theater. Garey arrived shortly before the appointed time, and plaintiff not being there, he went into a cafe and had a hot roast beef sandwich, potatoes and gravy. Plaintiff soon after came and they went for the car, stopping on the way to each drink a pint bottle of beer. On the outskirts of Waterloo, the car was stopped at a tavern for about fifteen minutes, and each of them drank a pint of beer. They then drove north on Highway No. 63, which has a paved roadway eighteen feet wide. Garey was driving the car, as he had done throughout the trip. They drove to the town of Denver, about twelve miles north, where they stopped and had a hamburger sandwich and another pint of beer apiece. They then proceeded north on this highway for about three or four miles until they reached the Bremer County Home, on the east side of the road. It was about 6:30 or 7 o'clock in the evening. Garey was still driving. It was dark and he had the lights of the car on. Both Garey and the plaintiff testified that the car was then and had been traveling at about a speed of fifty miles an hour. As they neared this point, Garey observed three motor vehicles traveling south on the west lane of the highway. The leading car was a Ford coupe occupied by August Wilharm, a blacksmith from Horton, and his wife. He had turned into the highway from the Plainfield road, about five and a half miles north of this point. They had traveled at a speed of about twenty miles an hour and had slowed up to make a left-hand turn across the paving to enter the driveway up to the Home. The second vehicle, and just behind Wilharm, was an International truck with a cab and a box body seven and one-half feet wide, carrying quite a heavy load of iron junk. It was driven by Joe Borg. He had seen the Wilharm car when it turned onto No. 63 from the Plainfield road. He followed this car at an estimated speed of twenty or twenty-five miles an hour up to the County Home. The third vehicle traveling south was the Chevrolet tractor-trailer combination of the defendant, driven by Fred Mayo. The trailer was twenty-two feet long and loaded with about eleven thousand pounds of hogs. He testified that he had followed the other two cars for about a quarter of a mile at a speed of about twenty miles an hour. He had driven that road many times. The lights on his vehicle were all turned on. That was true of the two cars ahead. He observed the two cars slowing up for a short distance and he prepared to do likewise.

That was the situation as the plaintiff's car approached. Wilharm said he extended his left arm as he prepared to turn, but when he observed the immediate approach of plaintiff's car, he drove to his right and half way onto the shoulder, to let the plaintiff's car pass. It did pass, traveling on the east lane of the highway and east of the black lines.

Borg testified that he made the movement of his truck correspond to that of the Wilharm car, and drove half way on the right shoulder. He saw plaintiff's car pass north, east of the black lines in the east lane, at a speed which he estimated to be

[295 N.W. 124]

better than fifty miles an hour. Immediately after plaintiff's car passed the Borg truck, both he and Wilharm heard the crash of the collision between defendant's truck and plaintiff's car. Each of them stopped their cars and went back to the scene of the collision. Each of them testified that the tractor part of defendant's combination was headed diagonally, southeast across the east lane of the pavement. Borg said it was about twenty yards north of where he stopped his truck. Plaintiff's automobile was upright in the ditch east of the roadway.

Mayo testified that he never saw plaintiff's car until the crash; that he was watching the cars ahead, fearful that he might run into the heavy load of junk. The tractor portion of his combination had dual wheels and hydraulic brakes. The trailer had separate air brakes. There was a hand brake. He applied all of these brakes at once. The hand brake arm could be loosened only with a bar, it was set so hard. He testified that he missed the rear of the Borg truck by but a few feet.

Garey testified that he passed the Wilharm and Borg cars at all times on the east lane and never crossed to his left over the black lines, and that just as he passed the Borg truck the defendant's tractor shot across the black lines directly into the east lane, and colliding with plaintiff's car. Gary received a broken wrist, a broken ankle, cuts about the face and head...