Boegel v. Morse

Citation251 Iowa 1253,104 N.W.2d 826
Decision Date20 September 1960
Docket NumberNo. 49931,49931
PartiesHerbert H. BOEGEL, Appellee, v. Fred C. MORSE, Appellant.
CourtUnited States State Supreme Court of Iowa

Raun & Franck, Denison, Gordon Risher, Shenandoah, for appellant.

Jones, Cambridge & Carl, Atlantic, for appellee.

HAYS, Justice.

Plaintiff was awarded damages on account of injuries caused by the alleged negligence of defendant in the operation of his automobile upon the public highway. Defendant appeals.

The injuries are alleged to have been sustained when plaintiff, to avoid a collision with defendant's car, turned his car on the gravel shoulder and overturned. The incident occurred at the intersection of paved highway No. 48 and a gravel county road where they intersect at what is known as the Coburg corner, about six miles south of Red Oak, Iowa. At the point in question Highway No. 48, which is praved, runs generally north and south. The graveled county road runs east and west. Stop signs were in position on the graveled road at the intersection with no obstructions to view on either highway. From the intersection on No. 48, there is a slight upgrade to a crest some 500 to 600 feet to the south. About 4 P.M. on October 19, 1955 with the weather clear and pavement dry, plaintiff was driving north on No. 48, at about 50 to 55 miles per hour. At this time defendant was approaching the intersection from the west on the graveled road. Defendant entered the paved highway turning to the north and plaintiff, to avoid a collision, pulled his car to the right onto the gravel on the east of the intersection, hit a road marker and a spillway, causing it to overturn with the alleged resulting injuries.

Plaintiff asserts that as he came over the crest at about 50 to 55 miles per hour he saw defendant's car approaching the intersection from the west about 100 feet west of the stop sign. When about midway down the upgrade he saw defendant's car was past the stop sign and approaching the pavement. He sounded his horn and that defendant's car stopped or hesitated and when he next saw defendant's car it was entering onto the pavement headed in a northesterly direction. He applied his brakes with the result above mentioned. Defendant's version is entirely different. He state he approached the pavement, stopped some 20 feet therefrom, looked to the north and the south, saw no cars approaching and entered upon the pavement, turning into the east lane and proceeding north. That he heard a crash and for the first time was aware of plaintiff's car. There is some dispute as to the speed of the defendant's car from the time it entered the pavement until it stopped after the crash, ranging from 5 to 20 miles per hour. One Marion Joslyn was an eyewitness to the incident. As a witness for the plaintiff he stated that he was driving a truck east on the graveled road some 100 to 150 feet behind defendant's car. He states he observed the car coming from the south and heard the horn when it was less than 300 feet from the intersection at which time the defendant's car was entering the paved portion of the highway. He heard the brakes on the plaintiff's car squealing, saw it go on to the gravel and overturn.

I. Defendant moved for a directed verdict at the close of plaintiff's direct case and at the close of all of the testimony. He moved for a judgment notwithstanding the verdict and for a new trial. All motions were overruled. Assigned errors 1 and 2 are based upon overruling of the motion for judgment notwithstanding the verdict on the ground that plaintiff did not show he was free from contributory negligence, specifically, that he had his car under control; that he kept a proper lookout; and was driving at a speed that would permit him to bring it to a stop within the assured clear distance ahead.

Contributory negligence and proximate cause are questions of fact to be determined by a jury except where under the entire record the contributory negligence is so palpable that reasonable minds may fairly reach no other conclusion and only then does it become a question of law. Huffman v. King, 222 Iowa 150, 268 N.W. 144; Clark v. Umbarger, 247 Iowa 938, 75 N.W.2d 243; Auen v. Kluver, 250 Iowa 619, 95 N.W.2d 273; Kuehn v. Jenkins, 251 Iowa ----, 100 N.W.2d 604. There was clearly a question for the jury upon that question in the instant case.

II. Error is assigned based upon the overruling of objections interposed to a hypothetical question propounded to Dr. Ralph K. Ghormley. His testimony was in a deposition taken in January, 1958 and was read in the trial which was in December, 1958. He saw plaintiff first on August 7, 1956 and on August 14, 1956 he performed an operation on his spine. He stated patient informed him of a spinal injury that he received in 1954 and that his personal examination showed that he had been operated on for spondylolisthesis, which patient told him was done in October, 1954.

He was asked this question: Q. 'Assuming Doctor that on October 19, 1955, Mr. Boegel was driving an automobile at approximately 50 to 55 miles per hour, applied his brakes, skidded sideways on the gravel 30 to 40 feet, hit a post and the car in which he was riding flipped over on its top, came to a rest upside down, that in the overturning of the car Mr. Boegel ended up in the back seat and felt shook up, that from that time until you first examined Mr. Boegel he had a pain in his back, taking into consideration all of your own findings that you have testified to here, do you have on opinion with a reasonable medical probability as to whether such accident caused the condition of the scar tissue to which you have testified?' Objection was made that it now develops that pl...

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8 cases
  • Berhow v. Kroack
    • United States
    • Iowa Supreme Court
    • 25 Febrero 1972
    ...mind that but one conclusion may be fairly drawn therefrom, the question of proximate cause becomes one of law. E.g., Boegel v. Morse, 251 Iowa 1253, 1256, 104 N.W.2d 826; Noble v. Edberg, 250 Iowa 1331, 1335, 98 N.W.2d 741; Dunham v. Des Moines Railway Co., 240 Iowa 421, 427, 35 N.W.2d Alt......
  • Oak Leaf Country Club, Inc. v. Wilson, 2-58405
    • United States
    • Iowa Supreme Court
    • 21 Septiembre 1977
    ...circumstances the question of proximate cause becomes one of law. Berhow v. Kroack, Iowa, 195 N.W.2d 379, 384, 385; Boegel v. Morse, 251 Iowa 1253, 1256, 104 N.W.2d 826, 828. Of course, even though negligence may have been established, it does not necessarily follow that proximate cause exi......
  • Miresso v. State
    • United States
    • Indiana Appellate Court
    • 20 Febrero 1975
    ...v. United States, supra; Bates v. Newman (1953), 121 Cal.App.2d 800, 264 P.2d 197; United States v. Campbell, supra; Boegel v. Morse (1960), 251 Iowa 1253, 104 N.W.2d 826; Omaha Fire Insurance Co. v. Crighton (1897), 50 Neb. 314, 69 N.W.2d 766; Cowles v. Hayes, supra; In re Hulbert (1961), ......
  • Paulsen v. Mitchell
    • United States
    • Iowa Supreme Court
    • 18 Octubre 1960
    ...is so palpable that reasonable minds may fairly reach no other conclusion is the issue one of law for the court. Boegel v. Morse, 251 Iowa ----, 104 N.W.2d 826, and citations; Mueller v. Roben, 248 Iowa 699, 702-703, 82 N.W.2d 98, 100, and citations. We have said many times that it is the s......
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