Beardsley v. Hobbs

• Citation: 34 N.W.2d 916,239 Iowa 1332
• Decision Date: 14 December 1948
• Docket Number: 47348.
• Parties: BEARDSLEY v. HOBBS et al.
• Court: United States State Supreme Court of Iowa

34 N.W.2d 916

239 Iowa 1332

BEARDSLEY v. HOBBS et al.

No. 47348.

Supreme Court of Iowa

December 14, 1948

John D. Beardsley, of Onawa, for appellee.

OLIVER Justice.

The collision was in the intersection of Walnut Street, Salix, Iowa, and U S. Primary highway 75. Walnut Street runs east and west. It is not paved. Highway 75 has a paved slab eighteen feet wide. At this point it runs in a northerly direction. A short distance to the north it curves to the right (east), then to the left for a few hundred feet. The terrain is level. The only building at or near the Walnut Street intersection is an automobile service station immediately to the north and east. Plaintiff's Buick automobile, driven by his son James had stopped at this service station at about 8:30 P.M. of May 30 and was traveling west across the pavement at the Walnut Street intersection when it was struck on the right side by a south bound pickup truck owned by defendant Otis Hobbs and driven by his son, defendant John Hobbs.

Plaintiff brought action for damages to his automobile. Defendants counterclaimed for damages to the truck and personal injuries to John Hobbs. The record recites the trial court dismissed the counterclaim and granted judgment for plaintiff against defendants in the sum of $1,150. Defendants made no motion for judgment or new trial. Upon appeal they merely challenge the sufficiency of the evidence to show (1) their negligence and (2) plaintiff's freedom from contributory negligence.

I. Plaintiff contends these assigned errors cannot be considered upon appeal because the propositions were never presented to nor passed upon by the trial court. This court has not decided this question under the recently adopted Rules of Civil Procedure. Decisions under prior statutes are of little assistance. Rules of Civil Procedure, rule 179 provides that the court trying an issue of fact without a jury shall make written findings of fact and conclusions of law, which findings may be enlarged or amended on motion joined with or filed within the time allowed for a motion for new trial, and states:

'But a party, on appeal, may challenge the sufficiency of the evidence to sustain any finding, without having objected to it by such motion or otherwise.'

It is generally important that at least parts of the findings of fact and conclusions of law of the trial court be shown in the record on appeal. The record here does not show the trial court made written findings of fact or separate conclusions of law as required by Rule 179. However, this court secured the original judgment entry from the clerk of the district court. After a preliminary statement of the facts and the issues, it recites:

'There is no serious dispute in the evidence as to the circumstances attending the collision. James Beardsley and his companion testified to stopping for gasoline at a filling station located at the intersection. They left the filling station and moved a short distance to the highway and there stopped before entering on the pavement. Their speed on the pavement was two or three miles per hour. Young Hobbs confirmed Beardsley in saying that the Beardsley car was proceeding at 'creeping speed' at the time of the collision. Hobbs said he was driving 40 to 45 miles per hour but did not see the Beardsley car until about to collide; that Hobbs' car struck head-on into the side of the Beardsley car. There is nothing in the record to indicate that the Beardsley boy was not operating with due care. On the other hand, the conclusion is inescapable that the Hobbs car was being driven without adequate lookout and at an excessive speed under the circumstances, and that the collision was caused by the negligence of young Hobbs.'

(The next paragraph concerns damages)

'The court makes the foregoing its findings.'

(The final paragraph directs the judgment.)

Although the findings of fact and conclusions of law are not separately designated they are sufficiently separated. See Rank v. Kuhn 236 Iowa 854, 855, 20 N.W.2d 72. Under Rules of Civil Procedure, rule 179, it is clear defendants have the right, upon appeal, to challenge the sufficiency of the evidence to sustain the questioned findings. Whether they would have had such right in the absence of fingins need not be determined.

This being an action at law the issues are not triable de novo on appeal. The findings have the effect of a special verdict. Rules of Civil Procedure, rule 334. The only question is whether there is substantial support for them in the record, viewed in the light most favorable to plaintiff.

II. Defendants contend there was no evidence of negligence on their part. One specification of negligence which the court found was sustained by the record was the failure of defendant John Hobbs to keep a proper lookout. John testified, 'I first saw the Beardsley automobile just before I hit it.' His excuses for his failure to sooner see plaintiff's lighted car were that it was 'just at dusk, at that time when lights don't seen to do much good' and that while the truck was rounding the curve the rays from its headlights went to the right and did not illuminate the pavement ahead. The trial court was not required to accept these excuses. The record would support a finding the lights of the truck did reveal the car as soon as the truck rounded the curve. Moreover, plaintiff's car also was lighted. It is not contended John's view of these lights was obstructed. Apparently they were continuously visible from the truck even before it entered the curve. This circumstance alone was sufficient to support the factual finding of failure to keep a proper lookout.

The trial court found also the Hobbs car was being driven at an excessive speed under the circumstances. One of the specifications of negligence charged excessive speed. Section 321.285, Code of Iowa 1946, is the general statute restricting the speed of motor vehicles on highways. Another specification charged failure to have the truck under control and to reduce its speed as it rounded the curve in the highway and approached the intersection. It...