Bailey v. Fredericksburg Produce Ass'n

• Decision Date: 10 December 1940
• Docket Number: 45372.
• Citation: 295 N.W. 122,229 Iowa 677
• Parties: BAILEY v. FREDERICKSBURG PRODUCE ASS'N.
• Court: Iowa Supreme Court

295 N.W. 122

229 Iowa 677

BAILEY v. FREDERICKSBURG PRODUCE ASS'N.

No. 45372.

Supreme Court of Iowa.

December 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.

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 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, and was rendered unconscious.

Plaintiff was sitting to the right of the driver, relaxed and at ease and paid little attention to the traffic or the driving of his own car except that he told Garey not to drive faster than fifty miles an hour and that he did not exceed that speed. There was much traffic and he said he did not know what happened until the crash. He regained consciousness the next day.

What does the defendant's driver say?

" Q. You were afraid that night of running into the truck ahead of you? A. Yes, sir.

Q. That's what you were trying to avoid? A. Yes, sir.

Q. And you didn't see the Bailey car coming from the south? A. I did not.

Q. And you made no attempt to turn to the right side or the west side? A. No.

Q. But Fred, your tractor part missed the back end of the load of iron ahead of you, didn't it? A. Yes, sir.

Q. And you missed it by about ten feet, isn't that correct? A. No, I wouldn't say it was that far. I couldn't state exactly but I came awful close to it but I didn't hit it. The tractor part in which I was riding turned to the left and was on the east side of the highway immediately after the accident and when I got out of the cab I was on the side of the highway over which the Bailey car had traveled and the trailer part was diagonally on the west side of the paving.

Q. And when was the first time that you saw the Bailey car? A. I didn't see the Bailey car until the crash. I wasn't watching for cars coming from the south. I was using every effort possible not to run into the load of iron ahead of me.

Q. And after you applied your brakes the crash came? A. Yes, sir. That is about all I can tell you.

Q. But you do know the position of your tractor immediately after the crash? A. Yes, sir.

Q. You make no claim that the Bailey car was not driving on the right side of the road, do you Fred? A. I never made that claim to anybody.

Q. You make no claim that the Bailey car swerved from the right? A. I told you I can't tell just exactly how it happened. I never saw the Bailey car until after the crash.

Q. And whether the trailer jackknifed or not you are not sure? A. I am not. I am not telling you anything I can't back up. I know all the brakes took effect-both the emergency and the hand brake were set so hard that it took a crow bar to get the hand brake loose afterwards. I was thoroughly familiar with the road where the accident happened. It is a level stretch of paving. There was nothing to obscure the view of the cars driving north and south. I cannot account for how my tractor was headed in the southeasterly direction. All I know is that the load shoved it.

Q. Before the crash had you brought your car to a stop? A. I tell you I can't definitely answer that. As I applied my brakes the crash come and I couldn't tell whether it was-in other words the crash came an instant after the brakes were applied."

The grounds of negligence as alleged in plaintiff's petition were in substance that defendant's truck failed to turn to the right when it met plaintiff's car approaching from the opposite direction, but turned to the left and across the black line and was driven into and against plaintiff's car, and that defendant's truck was driven at an excessive rate of speed under the circumstances. Defendant's answer was a general denial.

I.

Appellant's first assignment of error has to do with an instruction of the court relative to the consideration to be given by the jury to the beer drinking of plaintiff and Garey. This matter was first mentioned in the case by defendant's attorney telling the jury in his opening statement that he expected to prove the intoxication of plaintiff and Garey. On objection by opposing attorney, the court admonished the jury that he would definitely instruct them later on the matter. Plaintiff's attorney asked both plaintiff and Garey about their drinking on direct examination, and they were cross examined about it. Neither side objected. The witnesses testified as we have noted, and that that was the extent of their drinking that day, and that neither of them was intoxicated at all....