Cerny v. Secor

• Decision Date: 13 January 1931
• Docket Number: 40503
• Citation: 234 N.W. 193,211 Iowa 1232
• Parties: JOSEPH R. CERNY, Administrator, Appellee, v. HARVEY SECOR et al., Appellants
• Court: Iowa Supreme Court

234 N.W. 193

211 Iowa 1232

JOSEPH R. CERNY, Administrator, Appellee, v. HARVEY SECOR et al., Appellants

No. 40503

Supreme Court of Iowa, Des Moines

January 13, 1931

REHEARING DENIED MARCH 17, 1931.

Appeal from Johnson District Court.--H. D. EVANS, Judge.

Action for damages for death of plaintiff's intestate, Joseph J Cerny, alleged to have been caused by the reckless operation by defendant Harvey Secor of Secor's automobile, in which decedent was riding as a guest. The Central Surety & Insurance Corporation was impleaded, because of having issued a liability policy to defendant Secor. Verdict and judgment for plaintiff. Defendants appeal.--Affirmed on condition.

Affirmed on condition.

Henry G. Walker, C. C. Putnam and Paul H. Williams, for appellant.

Frank F. Messer, Don Barnes and Donald Barnes, Jr., for appellee.

OPINION

MORLING, J.

The action was most thoroughly and meticulously tried by both sides. The evidence is elaborate. Appellants' principal contentions are that the evidence is insufficient to show reckless operation, or that the accident was the proximate result of reckless operation. Defendants contend that the evidence does show affirmatively that there was a defect in defendant's car, and that such defect was the proximate cause of the accident.

The accident occurred shortly before 11 P. M., November 11, 1928, a short distance north of Iowa City, on a paved primary highway. Defendant Secor resides in Iowa City, and had gone over this highway that same evening to Budrow's Inn, a place of entertainment. Decedent was also at Budrow's Inn. As defendant was about to return to Iowa City, decedent requested, and was given, permission to ride with defendant. The paving from Budrow's Inn to Iowa City is 24 feet in width, constructed with curbs. It runs southeastwardly down grade, and is intersected by other roads. The highway approaches the Iowa River. One creek crosses the highway, and one parallels it. At the place of the accident, the grade is comparatively level. Immediately east of the paving at that place is a steep bank, the toe of which ranges from one foot to 15 1/2 feet from the curb. Defendant was following a taxicab, which was a half block to a block ahead of him, and which contained a number of passengers. Defendant's car was a one-seated roadster, with rumble seat. Three were riding on the seat. Deceased rode alone in the rumble seat. About the time the car reached the beginning of a curve to the right at the place of the accident, and on comparatively level grade, the left wheel passed over the left curb, following the curb some 50 or 60 feet, when the right wheel also went over the curb. About 18 feet from the point where the left wheel crossed the curb, the car collided with and broke down, close to the ground, a 12-inch cedar electric light pole. 25 or 30 feet farther on, it tore out about 21 feet of fence, bending over and tearing loose 2 or 3 iron posts and a brace. Some 50 or 60 feet farther on, it broke down another 10- or 12-inch electric light pole, splintering it from the ground up 3 or 4 feet or more. 38 feet farther on, the car struck a 6-inch box elder, tearing it up by the roots. The light poles were decayed at the ground line, but contained about 9 inches of "fairly good wood." The uprooted tree was in shallow soil. A witness testifies that, the next morning, she said to defendant Secor:

"'This is terrible; you must have been going at a terrific rate of speed.' He says, 'No,' he says, 'I was going about 45 miles an hour.' I said, 'Well, what in the world happened?' He said, 'Just my brakes locked.'"

The fire chief, who was called out immediately after the accident, says that he asked defendant "what happened, and I understood him to say that the brakes locked." The coroner, who was at the scene shortly after the accident happened, testifies that he had a conversation with defendant.

"I said, 'What happened?' He said, 'I don't know. I think my wheels locked,' and he said, 'Harve, are you sure your wheels locked?' He said, 'I am sure they did.' I said, 'Can they lock on your car?' He said, 'I wouldn't be positive.' I said, 'How did this thing happen?' He said: 'I don't know whether I put my foot on the brake and it pulled to one side, but anyway, it pulled the car over that way, whatever happened.' He said: 'I think I put my foot on the brake,--I am not sure; but the car swerved to the left, pulled right over to that side of the road.' * * * I think he said at that time he was going about 40 to 45 miles an hour. I think the matter of whether or not he was racing was mentioned, but I think his reply was just that 'I don't think I was,'--I wouldn't be positive. * * * He said to me, 'I don't know, but I think my wheels locked.' I am positive that was his remark. Then I asked him if that could happen, or something to that effect, and he said, 'I am sure it did.' Then after that, something was said about the brakes, and I think this answer was, 'I am not sure whether or not I put on my brakes or not.' He was not positive about the brakes."

Decedent's mother and another witness testify that, the next day, defendant Secor said: "'Well, I want to do all that I can. * * * I am sorry. * * * I know I am guilty.'"

I. Defendant's theory is that the upper end of the snubber strap became loosened from its attachment and fell or became slack, and the strap and lower buckle became entangled between the snubber strap anchor and the drag link or steering arm, thereby blocking the movement of the steering gear, preventing him from making the right turn necessary to keep on the pavement. Defendant contends that his car, on reaching the end of the curb, was thereby, against his effort to turn to the right, forced along the same line on which it had been traveling, and so forced off the paving. The fire chief, who examined the tracks of the car the next morning, testifies:

"When it got to the north curb, if it continued in the line that it had, coming across the highway, it would have went up the hill, up the bank. It must have turned to the right."

There is other testimony on this subject. The car was hauled into town soon after the accident. There is testimony that the snubber strap, the next morning, was found disconnected from its upper attachment. The snubber strap is normally held tight, by means of a coil spring hooked in the snubber box. When the spring breaks, or is uncoiled, the snubber strap slackens or falls. Defendant's evidence is that this spring was found to be uncoiled and broken. Defendant introduced evidence to the effect that, in August, he had had trouble in making turns, and on investigation, found that the snubber strap spring was broken. While defendant says that a new spring was inserted in August, his witness says it was inserted on October 21st. Anyhow, defendant admits that the new spring was not used before October 21st. After the difficulty in August, and up to October 21st, the car was used without a snubber strap. On October 21st, a new snubber strap was inserted. Defendant's testimony is that he had had no trouble from ...