Davis v. Hoskinson

• Decision Date: 05 March 1940
• Docket Number: 45060.
• Parties: DAVIS v. HOSKINSON.
• Court: Iowa Supreme Court

290 N.W. 497

228 Iowa 193

DAVIS v. HOSKINSON.

No. 45060.

Supreme Court of Iowa.

March 5, 1940

Appeal from District Court, Adams County; Homer A. Fuller, Judge.

Action at law to recover damages sustained by plaintiff as the result of collision at a highway intersection, between an automobile which she was driving, and one driven by the defendant. From the judgment on a verdict by a jury, and from an adverse ruling on his motion for new trial, the defendant has appealed.

Reversed.

HAMILTON, C. J., dissenting in part.

Stanley & Stanley, of Corning, and Putnam, Putnam, Fillmore & Putnam, of Des Moines, for appellant.

Ed Fackler, Jr., of Corning, and O. M. Slaymaker, R. E. Killmar and D. D. Slaymaker, all of Osceola, for appellee.

BLISS Justice.

The plaintiff, a married woman, twenty-seven years old, lived at Prescott, a few miles north and east of Corning, in Adams County. She was a cosmetologist, and for a number of years had driven daily from her home to her employment in Corning. There were three different routes which she ordinarily took, depending upon the condition of the highways. One was a dirt road down and along the Nodaway River. Another was a graded highway, surfaced with gravel or crushed stone, extending west from the north boundary of Prescott until its intersection with County Road X, running north and south, and then westerly into Corning. The third was a dirt road extending due west from Prescott, on the half section lines of Sections 22, 21, 20 and 19, in Prescott Township, and angling southwesterly to and across County Road X, then a mile west, and south into Corning. County Road X was a graded highway, surfaced with crushed stone. It extended northeasterly from Corning a short distance, thence east along the south line of section 25, and thence north, through the east sides of sections 25, 24 and 13 in Quincy Township. She left home for Corning, on the morning of July 25, 1938, shortly before eight o'clock, in her 1936 two door Chevrolet sedan, traveling on what we have described above as the third road. This road intersects County Road X, at a right angle, between sections 24 and 25. There is a jog in the dirt road as it enters and leaves County Road X, that is, the center of the road as it leaves is 15 feet further south than the center of the road as it enters the intersection. County Road X, the north and south highway, at the south edge of the intersection is about 97 feet wide, between the fence lines. At this point the surfaced grade of the highway is 27 feet wide, and broadens as the roadway curves outwardly in merging into the intersection. The traveled roadway of the dirt road is 22 feet wide just east of the intersection, and about 17 feet wide just west of the intersection. As the dirt road approaches the intersection from the east, it comes up a rather steep incline-about a 13 percent grade-13 feet rise in a hundred feet. The intersection is quite level, and the view of each road fairly clear. The morning was clear and the highways dry. Both drivers were experienced and very familiar with the locality. The defendant, thirty-seven years old, had lived since birth at his home about 900 feet south of the intersection. Plaintiff testified that she shifted to intermediate gear as her car came up the incline to the intersection. She estimated the speed of her car at 13, 14, or 15 miles an hour. When 40 feet from the intersection she looked to her right, north, up County Road X and saw no one. She then looked to the south, on her left, and saw no one. Just as she entered the intersection she saw the defendant approaching from the south on her left, about 100 feet away, in distance, and about a second away, in time, for she estimated the speed of his Chevrolet sedan at from 65 to 68 miles an hour. The accuracy of her judgment in both matters is evidenced by the fact that the marks in the surfacing of the road showing the application of his brakes first appeared about 90 or 95 feet south of the point of contact, and the latter was approximately in the center of the roadway of highway X. When her car first entered the east line of the intersection, in second gear, going from 13 to 15 miles an hour, she testified that in her judgment she could have stopped it within 3 or 4 feet. Instead of stopping, she testified that she stepped on the accelerator and attempted to speed across. Her car was angled slightly to the southwest to enter the opening into the dirt road to the west. Defendant's car swerved slightly to his left just before the collision. The right front corner of his car struck her car just to the forward of the left door. Both cars apparently remained upright. The defendant's car, a little over 30 feet to the north and east, of the place of contact, facing north, and the plaintiff's car about 45 feet to the northwest, in the ditch facing south. The place of contact was 31 feet west of the southeast fence corner of the intersection and 7 1/2 feet north of the south fence line of the east dirt road, extended.

Defendant's motion for a directed verdict, and motion for new trial, and exceptions to instructions, given and refused, were all overruled. It was and is the appellant's contention that the north and south highway, upon which he was traveling, was a " county trunk" highway, and that under the record he had the right of way over the appellee at the intersection, and that the jury should have been so instructed. To establish that such was the character of this road, he offered in evidence a plat of Adams County showing the highways thereon, and memoranda showing certain highway descriptions and revisions thereof, with dates. This plat was from the office of the Iowa State Highway Commission, at Ames. The highway, in question, was retraced thereon by red markings. Attached to the plat, which was Exhibit 4, was the certificate (Exhibit 3) of F. R. White, chief engineer and secretary of the commission, stating that he was the keeper and custodian of its records, files, books and maps in its said office. The certificate also recited that such records and maps showed that the highway, in question, (describing it), marked in red on the plat, " is now a part of the county trunk road system of Adams County and * * * has been * * * since 1914." Appellee objected that each exhibit was " incompetent, irrelevant and immaterial * * * not the best evidence, * * * too remote in time * * * and do not show the situations to be the same at the time of the accident." On being informed that there were no stop signs at the intersection, the court said: " Objection will be sustained because the statements of the Chief Engineer of the Highway Commission that this is a trunk highway and it could only lead to confusion to the jury unless the law has been complied with as provided by the Acts of the last session of the Legislature. In order to charge a person with a duty to stop on a trunk highway, I think the law plainly provides that the Highway Commission and Board of Supervisors must take the proper steps by the erection of stop signs. Now, that would be the holding of the Court in connection with this matter, and that is the reason why the court is sustaining objections to ‘ 3’ and ‘ 4’ . * * * The holding of the court would be unless the stop signs were erected there was no difference in this intersection than any other intersection on ordinary country highways."

In this court counsel for appellee state that even though the reasons given by a court for its exclusion of evidence may not be sound, yet if sound reasons exist, though not urged, and the evidence should be excluded, the ruling should not be interfered with on appeal. Counsel for appellee here urge that White, as chief engineer, was not an authorized custodian; that his certificate is not in proper form; that it merely recites conclusions; that it does not show that the plat is an original, or that it is a correct exemplification, or that it is from the office of the commission. We do not find it necessary to pass upon the soundness of counsel's objections either in this court or in the court below. For even though some of the objections may have been good, and the exhibits may have been rightly excluded, there was, nevertheless, competent evidence that the road in question was a county trunk highway. Otto Anderson, deputy sheriff, was a witness for plaintiff. On cross-examination he was shown Exhibits " 1" and " 2", being pictures of the dirt road, and the north and south highway, respectively. He answered: " Defendant's Exhibit " 2" is the through road looking north, County X."

Vernon, assistant county engineer of Adams County for three years, and for five years an engineer for the Highway Commission, was a witness for the defendant and for the plaintiff. As a witness for the defendant, he was interrogated by defendant's attorney, thus: " Q. Now, this road, the County Trunk X, on which this intersection is located that you have just described, how would you describe that County road extending from Corning north, running east and then extending north past the Hoskinson place to a place where it forms a T? A. Well, I would say it was beginning at the corporation line of Corning," etc. (correctly describing the road in question). The witness accepted the road's designation as a " county trunk road", and went on and described it.

Appellee urges that this is the attorney testifying rather than the witness. There is no merit in this. The question was not objected to. The witness was an engineer, who knew or should have known the facts. He was not one likely to have been misled or influenced by the form of the question.

Scott Hackett, a veteran fireman on the Burlington railroad, who lived on this highway, a mile north of the defendant, for...