Danner v. Cooper

• Decision Date: 13 December 1932
• Docket Number: 41286
• Citation: 246 N.W. 223,215 Iowa 1354
• Parties: GILBERT DANNER, Appellee, v. F. H. COOPER et al., Appellants
• Court: Iowa Supreme Court

246 N.W. 223

215 Iowa 1354

GILBERT DANNER, Appellee, v. F. H. COOPER et al., Appellants

No. 41286

Supreme Court of Iowa, Des Moines

December 13, 1932

REHEARING DENIED APRIL 6, 1933.

Appeal from Page District Court.--EARL PETERS, Judge.

Action for damages for a personal injury resulting from a collision between a hayrack upon a wagon and a truck which was owned by the defendant Cooper and driven by the defendant Bennett, an employee of Cooper. The plaintiff, at the time of the collision, was riding upon the hayrack; the team hitched to the wagon being driven by another. Both the plaintiff and the driver of the team were employees of the Henry Field Seed Company and engaged, at the time in question, within the scope of their employment. The action is founded upon negligence on the part of Bennett, the driver of the truck. There is no claim by Cooper that he is not liable for the negligence, if any, by Bennett; but both defendants deny the averments of the petition as to negligence on the part of Bennett. Trial to the court and a jury. Verdict and judgment for the plaintiff. The defendants appeal from the ruling of the trial court in overruling their motion for a new trial and their exceptions to the instructions given by the court to the jury.-- Affirmed.

Affirmed.

Keenan Barnes & Clovis, for appellants.

Wilson & Wilson, for appellee.

WAGNER J. STEVENS, C. J., and FAVILLE, DE GRAFF, and ALBERT, JJ concur.

OPINION

WAGNER, J.

We deem it advisable to first visualize the salient facts relative to the manner in which the plaintiff received the injury. The accident occurred May 20, 1930, near the west boundary of the city of Shenandoah, on Sheridan avenue, which runs east and west. Extending west from Sheridan avenue, without the corporate limits of the city, is primary highway No. 3. Along the westerly limits of the city of Shenandoah is a north and south highway which crosses Sheridan avenue and highway No. 3; this north and south highway is not paved and is known in the record both as "Fremont Street" and "The County Line Road." There are stop signs on Fremont street both to the north and south of the intersection. The pavement on highway No. 3 is 18 feet wide west of the center of the intersection, and from that point the pavement gradually widens, connecting with Sheridan avenue, upon which the pavement is 30 feet wide. The accident in which plaintiff received the injury occurred a short distance east of the intersection.

A ton and a half truck, owned by the defendant Cooper and driven by the defendant Bennett at the time in question, approached from the west. The driver of the truck, as he approached from the west, had a clear vision of the intersection for a distance of more than a quarter of a mile.

On the morning of the accident, the plaintiff and Josh Niel, another employee of the Henry Field Seed Company, while engaged within the scope of their employment, approached the intersection from the south on a hayrack placed on a wagon drawn by a team of horses driven by Niel. The team was stopped at the intersection and then turned to the east, entering Sheridan avenue. At the time of the accident, the team was traveling in an easterly direction upon Sheridan avenue, east of the intersection. The plaintiff testified that, as they (he and his coemployee) approached the intersection from the south, he was seated on the right-hand side of the hayrack, with his feet hanging out. The testimony of the plaintiff and a number of witnesses in his behalf, who saw the accident, is to the effect that, as the team was going east, the plaintiff was on the right side of the hayrack, with his feet hanging over, or close to the curb, This testimony is uncontradicted.

At the time in question, a car driven by Utterbach came from the north on Fremont street. All of the testimony offered in behalf of the plaintiff from a number of eye witnesses is to the effect that the Utterbach car was standing still at the time when the truck driven by Bennett collided therewith; that no portion of the Utterbach car was upon or protruded over the pavement at that time, but that the bumper was at the north line of the pavement, or in close proximity thereto. As to this subject, the plaintiff testified:

"I saw the other car sitting on the north side of the street before we drove on the pavement. It was right up close to the pavement, but not on it.

"Q. How close was it to the pavement when you saw it? A. I couldn't say, as only his bumper was up to the pavement, as close as it could get.

"Q. Was it one foot from the pavement or ten feet? A. Well, it could have been a foot, but it wasn't no ten feet. I observed that when I went around the corner there on the hayrack."

The truck approached and entered the intersection from the west with considerable speed. One of plaintiff's witnesses testified that when he first saw the truck coming it was running 40 or 50 miles an hour, and that it slowed up very little from that time until it hit. "I would say it was going 40 miles an hour when it hit the Utterbach car. I don't think it slowed up much from the time it hit the Utterbach car until it hit the hayrack." There is other testimony in the record to the same effect.

It is shown by the record that, as Bennett approached the intersection from the west, he turned the truck to the left and that the first collision was between the truck and the Utterbach car. This collision occurred between the front portion of the Utterbach car and the rear portion of the truck. The truck was carrying a spare tire in front of the left hind wheel, which protruded several inches from the body of the truck. It was this spare tire and left hind wheel of the truck which collided with the front portion of the Utterbach car.

The question of fact upon which Bennett and the witnesses for the plaintiff differ is as to whether or not the Utterbach car stood still or whether it was moving into the intersection at the time of the collision between the two cars. All of the witnesses to the accident, except Bennett, testified that the Utterbach car remained stationary at the north edge of the paving. Bennett testified:

"As I entered the intersection, he (Utterbach) turned over to the left side of the pavement, probably from eighteen inches to twenty-four inches from the north side of the pavement. I saw the Utterbach car move as we hit. It began to move just as I entered the intersection. I tried to swing my car to the right to try to miss and avoid the accident. He (Utterbach) was sitting almost in the center of the road (Fremont Street). I saw Mr. Utterbach's car sitting there, and to pass the hayrack I pulled to the left side of the pavement. And just as I entered the intersection, Mr. Utterbach's car started forward, and the right end of his car started forward, and the right end of his front bumper and the front fender hit the spare tire and caught my left rear wheel, just as I turned to the right to avoid the accident, and that threw me across the street."

The Utterbach car was shoved to the east side of Fremont street, facing east, or a little northeast. After the collision between the truck and the Utterbach car, the truck veered to the right and collided with the rear end of the hayrack which was proceeding a short distance east of the intersection in an easterly direction upon the right-hand side of the paved street.

As the result of the collision between the truck and the hayrack, plaintiff was thrown from the hayrack and injured. Plaintiff's evidence shows that for a period of five weeks he was not able to work at all, and that since said time his employer has given him elevator work and other work of a character lighter than that which he previously performed. There is testimony in the record from which the jury could properly find that the injury to plaintiff's back and pelvis, resulting from the accident, is permanent. Upon trial of the issues, the jury returned a verdict in favor of the plaintiff in the sum of $ 1,825.

The appellants complain that the court erred in overruling their motion for a new trial based upon newly discovered evidence, which they claim is material and not merely cumulative or impeaching; and which they assert is admissible as admissions and declarations of the plaintiff, and that they could not with reasonable diligence have discovered the same and produced it at the trial. It is shown that the plaintiff, shortly after the injury, made claim for compensation under the Workmen's Compensation Law (Code 1931, section 1361 et seq.), and that in the office of the industrial commissioner, in Des Moines, there is on file a memorandum of agreement signed by plaintiff and by an officer of his employer, which provides:

"Date when disability commenced. May 20, 1930. If disability has ended, give date of ending. June 10, 1930."

It is also shown that in the office of the Employers' Mutual Casualty Company of Des Moines, the company which insured the employer for its liability under the Workmen's Compensation Law, there is on file a statement signed by the plaintiff, which provides:

"5-21-30. Statement of Gilbert Danner.

"I am 36 years old. I have no children. I am living with my wife.

"Yesterday morning, around 9 A.M., Josh Niel was hauling manure to Number 2 house. I went with Josh to help him. We got manure at the Fair grounds and dumped it at Number 2 house. We were returning from Number 2 house on the dirt road and came to the pavement from the south.

"I was sitting on the side of the wagon facing west. Jos was standing up in the wagon. When we came on the paving there was a Ford touring car parked on the dirt facing south on the north side of the pavement. It seems after we got on the pavement and had gone 15 to 20...