Brady v. McQuown
| Decision Date | 13 December 1949 |
| Docket Number | No. 47523,47523 |
| Citation | 241 Iowa 34,40 N.W.2d 25 |
| Parties | BRADY v. McQUOWN et al. |
| Court | Iowa Supreme Court |
Page & Nash, of Denison, and R. E. Duffield, of Guthrie Center, for appellants.
Batschelet & Thompson, of Guthrie Center, for appellee.
Georgia Brady, (57) plaintiff's intestate was killed in the early afternoon of Mother's Day (May 12) 1946. She was riding on the right front seat of her husband's Model A Ford, driven by her daughter, Neva (19), traveling eastward on Highway 64, about 1 1/2 miles east of Guthrie Center.
Defendant's car, driven by defendant Earl McQuown, Jr. (23), was coming from the east with William Joseph Wood (20) as a passenger. The young men were cousins. The cars collided at or near the crest of a small hill. The evidence was in some conflict as to the movement of the cars and the place on the pavement where the collision occurred. The jury found for plaintiff and defendants appeal from the resulting judgment.
Extended statement of the evidence is unnecessary since its sufficiency to go to the jury is not questioned. The defendants assign errors which we shall discuss in their order of assignment.
I. The defendant driver testified that immediately after the collision 'Miss Brady told me she and her mother were driving along talking; they weren't watching the road.' The testimony was first admitted over, and then stricken on, the objection of incompetency, irrelevancy, immateriality and hearsay.
The witness was however then permitted to testify that Neva Brady told him: her mother said 'Look out for the car'; that she (Neva) was driving on the north side of the road, didn't see the McQuown car until just before they collided and that she 'turned back to her side of the road without thinking what she was doing.' The rulings were not very consistent but we think no prejudice resulted.
It is argued the part stricken (italicized above) was vital with special respect to the issue of decedent's contributory negligence. Foundation for its admission for purpose of impeachment had been laid by cross-examination of Miss Brady who denied telling defendant 'that we were not watching the road just before the collision.' She said she told him that her mother saw the car first and said 'Look out for the car.'
Doubtless the statements were all admissible as part of the res gestae apart from any purpose of impeachment. Duncan v. Rhomberg, 212 Iowa 389, 394, 236 N.W. 638; Aldine Trust Co. v. Nat'l. Ben. Acc. Ass'n, 222 Iowa 20, 23 et seq., 268 N.W. 507. But unfortunately for defendants' contention the stricken portion was also in substance testified to by Mr. Wood (unchallenged and undenied): 'When I came back down to the cars (after telephoning for help) Neva Brady came over to me and told me it was her fault and she was sorry; that she and her mother were talking and looking around and wasn't watching where they were going.'
With this testimony the statement of Miss Brady was squarely presented to the jury notwithstanding its previous exclusion. It was in the record for whatever it was worth as substantive evidence of contributory negligence. The statement was made to Mr. Wood. Whether it was also made to defendant could not be so important as to justify a reversal.
So far as concerned decedent's care or want of care the testimony was somewhat in the nature of a conclusion. The daughter could speak with knowledge as to her own watchfulness or lack of watchfulness of the road and where they were 'going,' but she could only infer as to her mother's mental alertness. Furthermore, the testimony, though admissible as part of the res, was subject to some of the frailty of hearsay as applied to her mother's statement. It was not direct testimony but subject to possible misunderstanding and mistake.
We are aware of the rule fixing the degree of care required of decedent as a mere passenger and that the burden of proof on that issue was on plaintiff. But with the Wood testimony and the other evidence of the location and movements of the cars and the opportunity of the parties to see oncoming vehicles, the exclusion of the testimony of defendant, of the same or similar statement by Miss Brady as that made to Wood, cannot be treated as prejudicial error. Morrow v. Downing, 210 Iowa 1195, 1201, 232 N.W. 483.
II. Highway patrolman, Chevalier, arrived at the scene shortly after the collision. The cars were still there. In the course of his testimony as to his investigation he testified to black marks on the pavement which he referred to as 'tire burn marks.' The trial court struck the answer. Immediately following he again called them 'black tire marks, burn marks.' That answer was allowed by the court to stand. In a third answer, however, he spoke of the 'tire marks' and the trial court struck the answer. Again there was inconsistency in the court's ruling but again we find no prejudicial error.
There was subsequent testimony of measurements of the marks by both patrolman and the sheriff and the situation of such marks on the pavement with reference to the McQuown car. The nature of the marks could not be mistaken and reference to them as 'tire marks' and 'burn marks,' with the subsequent descriptive testimony was not erroneous.
Defendants argue that the witness might have described the marks, 'their appearance, length and other circumstances relating thereto.' Plaintiff says a witness may describe what he saw,--may state the fact as he saw it. There is no great difference in these contentions. When an object or a condition acquires a commonly used and undertood name, the name itself constitutes about as good a description as can be used.
When a rubber tired vehicle, traveling at a high rate of speed on pavement is suddenly attempted to be stopped by application of the brakes preventing the wheels from turning, it skids and makes marks on the pavement. The fact is common knowledge. The marks could be described perhaps by color, size, location, etc. But the name 'tire marks' or 'skid marks' or 'tire burn marks' is about as descriptive as any language that could be used. Such name, like the term 'footprints,' has ceased to be a mere conclusion and when by other evidence the mark so described is connected with the particular vehicle in question as was done here, there can be no error involved in its use.
The damaging part (to defendant's cause) of the evidence at this point was not due to the name the witness used in describing the marks, but to the testimony that showed they led to defendants' car when it came to rest and showed the course it took to reach that point. There was no error here....
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