Brower v. Quick, 49347

• Decision Date: 11 February 1958
• Docket Number: No. 49347,49347
• Citation: 249 Iowa 569,88 N.W.2d 120
• Parties: Elliott N. BROWER, Appellant, v. Mae Camerer QUICK, Administratrix of the Estate of Mabel Bernice Quick, Appellee.
• Court: Iowa Supreme Court

Page 120

88 N.W.2d 120

249 Iowa 569

Elliott N. BROWER, Appellant, v. Mae Camerer QUICK, Administratrix of the Estate of Mabel Bernice Quick, Appellee.

No. 49347.

Supreme Court of Iowa.

Feb. 11, 1958.

Mick, Miller & Murphy, Knoxville, and Watson & Herrick, Indianola, for appellant.

J. W. Ritchie, Indianola, and Carroll Johnson, Knoxville, for appellee.

LARSON, Justice.

To plaintiff's action at law for damages resulting from a head-on automobile collision, defendant filed a general denial and a counterclaim. The jury returned a verdict against plaintiff for the wrongful death of defendant's decedent. He assigns as error the trial court's refusal to direct a verdict for him on the counterclaim, admission of certain testimony during the trial and failure to give sufficient or required instructions to the jury. The issues necessitate a rather extensive review of the facts and testimony introduced by each party.

At the place where the collision took place, Highway No. 60 runs somewhat southeasterly from Des Moines. Westward it was fairly level with perhaps a slight rise. Easterly it was level a short distance and then dropped down over a hill some three quarters of a mile to the South River bridge. About a mile farther in this river valley it crossed the Coal Creek bridge and continued on toward Knoxville. The accident happened sometime between 8:00 and 8:30 a. m. on June 21, 1956. The weather was fair and the highway dry and smooth. The plaintiff Elliott N. Brower, a resident of Knoxville, operated a garbage collection business there during the daytime. He also worked nights at the Black Leaf Chemical Company in Des Moines from 8:00 p. m. until 7:00 a. m. On the night shift before the morning of this accident, plaintiff had worked in the 'dry section' of the company running an automatic machine bagging an odorous fertilizer called hexachloride. After finishing work plaintiff took a shower as required by the company, ate breakfast, and started for Knoxville. He was driving a 1951 dark two-tone Buick sedan with a light cream top and a 63 county license plate. At a point approximately a mile and a half west of the scene of the accident a truck driver testified, over objections by plaintiff, that he had met a gray Buick bearing a 63 license plate between 8:10 a. m. and 8:20 a. m. As the trucker drove toward Des Moines this Buick came around a curve toward him in the left lane and forced him upon the dirt shoulder to avoid a collision. On his return trip a short time later he said he recognized the Buick as the one involved in this accident. A shoe salesman, Robert Daniels, on the other hand testified he had been following plaintiff for some four miles and that he appeared to be driving in his own lane at about 50 to 55 miles per hour right up to the time of the collision. This witness testified he was between a quarter and a half mile behind plaintiff when the accident occurred, but he did not disclose to anyone that he had seen the collision until he stopped at a store in Knoxville later in the day.

Defendant's decedent Mabel Bernice Quick left her mother's farm home in Marion County that morning to go to work in a beauty studio in Des Moines. She was driving alone in her 1955 Chevrolet sedan and had just passed a car driven westward by a witness, Nick Ver Steeg. He said she was driving about 60 miles per hour and, after passing him, returned to her right lane and disappeared over the rise west of the South River bridge. When the Ver Steeg car came over the rise, the accident had just occurred and Ver Steeg and his wife took over the task of directing traffic while a son went to summon aid. They testified that they did not see the car of Robert Daniels approach from the west. In fact, they said no car approached from the west for some time after the collision. Plaintiff's theory of the accident depends upon the eye witness testimony of himself and his witness Daniels, who testified he saw both cars for 'a minute or 30 seconds' (obviously inaccurate) before they collided, and upon the physical facts evident after the collision.

Plaintiff testified he was driving on his own side of the highway. He said he observed Miss Quick's car when it first came over the crest of the hill in the left lane, and estimated their distance apart at 350 to 400 feet. He estimated her speed at about 10 miles per hour faster than he was driving and said she stayed in that lane until they collided. He testified that at the last moment he swerved to the left side of the road in an attempt to avoid the collision, and applied his brakes. His statement to Ver Steeg immediately after the accident was that 'I was in a tailspin.' Miss Quick died without a statement, and thus her case is based largely upon circumstantial evidence.

In response to the call by Ver Steeg, a state patrolman arrived at the scene in about thirty minutes and the sheriff some fifteen minutes later. They took charge and dispatched the injured persons to the hospital, directed traffic, and made observations and measurements as to skid marks and vehicle positions. They testified there was a skid mark approximately 41 feet in length extending east of the Quick car. They also testified as to clear skid marks made by four tires, ending under the Buick. The mark made by the right wheel at the time of the impact was one foot and nine inches to the right of the center line; at forty feet westward it was six inches to the left of the center line; and at fifty feet westward the right-hand tire mark was one foot and three inches to the left of the center line. Thus the course of these marks made by the Buick was clearly from the left lane toward the right lane for the last fifty feet preceding the collision. In testifying as to the discernible mark east of the wreckage, the patrolman stated: 'This skid mark ends approximately 18 feet back from the point of impact at a point approximately two feet 9 inches to the right of the center line or to the north of the center line. I define the point of the impact as where the two front ends of the two cars came together. The approximate length of the Quick Chevrolet is in the neighborhood of sixteen feet. * * * The right rear wheel of the Quick car at the time I saw it was approximately * * * six inches from the center line on the left-hand side, or the south side of the center line.' Exhibits 9 and 12 clearly support the theory that the cars came to rest with their front ends together near the center of the highway, with both rear ends off to the left of the skid marks on the pavement.

Plaintiff's motion for a directed verdict against defendant on her counterclaim was overruled, and the issues of negligence alleged by each and the question of freedom from contributory negligence required were submitted to the jury. A verdict was returned for defendant in the sum of $17,500. The court overruled plaintiff's motion for a new trial and rendered judgment for defendant in the above sum. Plaintiff appealed.

I. Plaintiff contends that the court erred in overruling his motion for a directed verdict, his motion for a new trial, and his motion for judgment notwithstanding the verdict, for the reason that defendant's circumstantial evidence based largely on physical facts was unsatisfactory and inconclusive. He says defendant has failed to establish by competent and material evidence that the proximate cause of the collision was plaintiff's negligence or that she was free from contributory negligence. Thus the basic question before us is whether the competent evidence relating to the physical facts was sufficient to make fact issues for the jury.

We are firmly committed to the rule that to recover one need not prove his theory of causation by evidence so clear as to exclude every other possible theory. The evidence must be such as to make his theory reasonably probable, not merely possible, and more probable than any other hypothesis based on such evidence. Smith v. Darling & Co., 244 Iowa 133, 136, 56 N.W.2d 47, 49; Latham v. Des Moines Electric Light Co., 229 Iowa 1199, 1207, 296 N.W. 372, 275; Bokhoven v. Hull, 247 Iowa 604, 607, 75 N.W.2d 225, 227, and cases cited therein; Turner v. Hansen, 247 Iowa 669, 677, 75 N.W.2d 341, 345. Soreide v. Vilas & Co., 247 Iowa 1139, 1143, 78 N.W.2d 41, and citations. This means only that the competent and material evidence must be such as to raise a jury question within the limits of the foregoing rule; it need not be conclusive. Hackman v. Beckwith, 245 Iowa 791, 795, 64 N.W.2d 275; Hayes v. Stunkard, 233 Iowa 582, 588, 10 N.W.2d 19. In Weilbrenner v. Owens, 246 Iowa 580, 582, 68 N.W.2d 293, 294, we recognized the rule that in considering the defense contention that the testimony was insufficient for the jury, we must view it in the light most favorable to complainant. This rule is also referred to in Hackman v. Beckwith, supra, and Soreide v. Vilas & Co., supra. Ordinarily the issue of freedom from contributory negligence is one for the jury and becomes one of law for the court only in the exceptional case where plaintiff's want of reasonable care is so manifest and flagrant as to convince all fair minds plaintiff did not exercise the caution for his own safety which marks the conduct of an ordinarily prudent man. Tucker v. Tolerton & Warfield Co., Iowa, 86 N.W.2d 822, 825.

Plaintiff's evidence that the Quick car was in the wrong or south lane from the time he first observed it and that it did not change direction, is countered by the Ver Steeg testimony that Miss Quick drove over the creat of the hill in her own or right lane, and the tire mark in the north lane, if hers, indicates that she did not change her course to the left lane in that short distance. Defendant contends the skid mark sufficiently confirms that position and she supports the inference that the rear of the Quick car did bounce into the left lane a few feet beyond the end of the skid mark, by the testimony of a state...