Clark v. Berry Seed Co.

• Citation: 280 N.W. 505,225 Iowa 262
• Decision Date: 21 June 1938
• Docket Number: 44241.
• Parties: CLARK v. BERRY SEED CO.
• Court: United States State Supreme Court of Iowa

280 N.W. 505

225 Iowa 262

CLARK v. BERRY SEED CO.

No. 44241.

Supreme Court of Iowa.

June 21, 1938

Appeal from District Court, Page County; Earl Peters, Judge.

Action for damages claimed to have been sustained by plaintiff in a collision between a truck operated by him, and a truck belonging to defendant. Judgment in favor of plaintiff, from which defendant appeals.

Affirmed.

Stipe Davidson & Davidson, of Clarinda, and W. B. Cozad, of Kansas City, Mo., for appellant.

Calvin, Vandeventer & Kimbrell, of Kansas City, Mo., and Ferguson & Ferguson, of Shenandoah, for appellee.

MILLER, Justice.

For some period of time prior to January 9, 1936 plaintiff-appellee was in the employment of the Bell Transfer Company, and on said date was engaged in operating a freight truck on a regular run between Kansas City and Des Moines, over highway No. 69. On said date he was operating what is known as a tractor-trailer truck, consisting of a Chevrolet truck with trailer attached thereto by what is known as a " fifth wheel" . On the evening of January 8, 1936, appellee left Des Moines with a pay load of 16,000 pounds, and started for Kansas City. Finding the pavement in southern Iowa icy and slick, appellee, at the town of Lamoni, Iowa, put chains on the rear wheels of the tractor and proceeded southward. At a point about 2 miles north of Bethany, Mo., there is an S curve in said highway, and while driving southward on this S curve the tractor-trailer truck operated by appellee collided with a similar tractor-trailer truck belonging to defendant-appellant, which was proceeding northward on said highway, and being operated by one John McLean. As a result of such collision appellee suffered injuries out of which this litigation arose. Trial was had in the district court, and verdict returned in appellee's favor, following which appellant filed exceptions to instructions and motion for new trial, which was overruled, and appellant now appeals to this court.

In view of the fact that the collision in question occurred in the state of Missouri, the case was tried under the statutes of that state relative to the use of motor vehicles upon the public highways therein.

In accordance with the provisions of said statutes, appellee plead that the operator of appellant's truck was negligent in the following particulars: (1) that he failed to drive said truck in a careful and prudent manner, to exercise the highest degree of care, and to drive the same at a rate of speed so as not to endanger the property of another, or the life or limb of any person; (2) that he failed to keep the same as close to the right-hand side of the highway as was practical; and (3) that he failed to turn appellant's truck to the right of the center of the highway so it might pass the tractor appellee was driving, without interference; which three specifications of negligence were submitted to the jury.

Division I. At the close of appellee's testimony appellant made a motion for directed verdict in its favor upon the ground that the physical facts and the testimony conclusively established that both trucks were on the east side of the highway; or the right-hand side for appellant's truck as it was proceeding northward, and on the left-hand side for the truck being operated by appellee, at the time of the collision. This motion was overruled by the trial court; was again renewed at the close of all the testimony, and again overruled. In appellant's motion for new trial it is contended that the court erred in overruling said motion; for the reason that the physical facts developed during the trial definitely established that its truck was on its right-hand side of the center of the highway, and that the truck being operated by appellee was on its left side of the center of the highway at the time of the collision; and that said record established conclusively that appellee was guilty of contributory negligence therein as a matter of law. It is to be observed therefrom that the only contention of appellant in the court below, both in its motion for directed verdict and its motion for new trial, is that the physical facts conclusively establish that the truck of appellant was at the time of the collision on its right-hand side of the center of the highway, and that the truck being operated by appellee was at said time on appellee's left-hand side of the center of the highway. Appellant, however, in its appeal, contends not only that the court erred in overruling its motion for directed verdict and its motion for new trial upon that ground, but also upon the additional grounds: (1) that there was not sufficient direct evidence tending to show that the operator of appellant's truck failed to drive the same in a careful and prudent manner, or to exercise the highest degree of care, or to drive the same at a rate of speed so as not to endanger the property of another, or the life or limb of any person; and (2) that the evidence likewise established conclusively as a matter of law that appellee was guilty of contributory negligence in that at the time and just prior to the collision he did not have his truck under control, which negligence contributed to the accident. However, a critical examination of the record reveals that neither in its motion for directed verdict, nor in its motion for new trial, did appellant make either of the contentions above enumerated as Nos. 1 and 2. For that reason, in determining whether or not the trial court erred in refusing to sustain appellant's motion for directed verdict, and motion for new trial, we are limited to a consideration of whether or not the evidence and physical facts establish conclusively that the collision took place east of the center of the highway.

The Statutes of Missouri, insofar as applicable, read as follows:

" § 7777. Rules of the road and traffic regulations. Every person operating or driving a vehicle upon the highways of this state shall observe and comply with the following rules of the road: * * *

(b) All vehicles when in operation shall be kept as close to the right-hand side of the highway as practicable.

(c) An operator or driver meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center of the highway so as to pass without interference." Mo. St.Ann. § 7777(b, c), p. 5213.

Naturally, if the physical facts and the evidence conclusively establish that the collision took place east of the center of the highway, the same would negative any claim of negligence upon the part of said John McLean as to the second and third specifications of negligence submitted to the jury, and would likewise establish contributory negligence on the part of appellee. A determination of this question requires an examination of the undisputed testimony and the testimony of appellee.

The record establishes without dispute that the collision resulted from sideswiping upon the S curve above referred to; that the highway was of cement construction, 18 feet in width; that hills ascended both to the south and the north from the point where the collision took place; that there was snow on the ground at this point; that the pavement was somewhat icy and slick; that just prior to the collision appellee was proceeding downgrade and driving on the inside of the curve, while appellant's truck was on the outside of said curve; that at the point of collision the east side of the curved pavement was lower than the west side; and that following the collision both trucks came to a stop east of the center line of the pavement mostly on the east dirt shoulder, with the truck being operated by appellee heading southeast, with its front portion in the ditch on the east side of the pavement.

Appellee testified that the center line of the highway was visible to him at all times; that as he entered the S curve in driving southward he observed the lights from appellant's truck as it came down the hill from the south for an eighth of a mile; that he slowed down to about 17 or 18 miles an hour; that he drove his truck on the extreme right-hand side of the highway approximately 12 inches to the right of the center line of the pavement, and continued to operate said truck in that position; that appellant's truck approached him at the rate of about 30 miles an hour; that the two trucks met at the time his trailer and tractor were on the inside of the curve; that a part of the appellant's truck had passed him when there was a crash right at the back of the left door of the cab of his truck, followed by another impact in just a matter of seconds, following which he was rendered unconscious. A photograph of the truck being operated by appellee reveals that the entire left side of the tractor portion of the truck was damaged.

Based upon the record as above set out, appellant contends that the physical facts conclusively establish as a matter of law that the collision did take place on the east side of the center of the pavement. Appellant contends that on account of the fact that the pavement was higher on the west side than on the east, with appellee driving downhill on the inside of a curve with a heavy load of freight, on an icy and snow covered pavement, that centrifugal force would tend to...