Dircks v. Tonne

• Decision Date: 04 April 1918
• Docket Number: 31606
• Citation: 167 N.W. 103,183 Iowa 403
• Parties: HENRY DIRCKS, Appellant, v. ERNEST TONNE et al., Appellees
• Court: Iowa Supreme Court

167 N.W. 103

183 Iowa 403

HENRY DIRCKS, Appellant, v. ERNEST TONNE et al., Appellees

No. 31606

Supreme Court of Iowa, Des Moines

April 4, 1918

Appeal from Jones District Court.--JOHN T. MOFFIT, Judge.

ACTION for damages resulting from a collision of two automobiles. Verdict for plaintiff for $ 1.00. Both parties appeal. Reversed on plaintiff's appeal; affirmed on defendant's appeal.

Reversed on plaintiff's appeal; affirmed on defendant's appeal.

C. J Lynch and J. C. France, for appellant.

Chas W. Kepler & Son and E. A. Johnson, for appellees.

STEVENS J. PRESTON, C. J., EVANS and GAYNOR, JJ., concur.

OPINION

STEVENS, J.

At the time of the accident complained of, plaintiff and other members of his family were riding in a Cadillac car, driven by his son upon a public highway, which had been made slippery by a recent rain. Shortly before plaintiff's car crossed a culvert, a car owned by defendant Ernest Tonne, which was occupied by his two minor sons, and which was being driven by S. Tonne, the older of the two, appeared on the top of a hill, about 24 rods distant. The cars collided at a point, apparently, near the foot of the hill. Both cars were considerably broken and damaged. Plaintiff brings this action for damages to his car, and for injuries alleged to have been received by his wife, whose claim therefor was duly assigned to him. Defendant interposed a counterclaim for damages to his automobile.

At the close of plaintiff's evidence, the defendant E. Tonne, appellee herein, moved for a verdict in his behalf, on the ground that he was in no wise responsible for the damages to plaintiff's car, or to his wife, and that the evidence wholly failed to show that the driver of the automobile was either the servant or agent of defendant, and that it appeared therefrom that said driver was driving the car for his own benefit and pleasure, and that, if negligent in the operation thereof, same should not be imputed to the defendant. At the close of the evidence, plaintiff moved for a verdict in his favor on defendant's counterclaim, and that same be withdrawn from the consideration of the jury. Both motions were overruled. The jury returned a verdict for plaintiff in the sum of $ 1, on which verdict judgment was duly entered. Plaintiff and defendant E. Tonne both appeal. As plaintiff's appeal was perfected first, he will be treated as the appellant.

I. We will dispose first of the questions presented by plaintiff upon his appeal. The negligence charged in defendant's counterclaim is that plaintiff permitted his minor son, who was inexperienced and incompetent, to drive the car, upon the occasion in question; that the son failed to turn to the right soon enough to permit defendant to pass, and at a point where he could easily have done so; that the son failed to give one half of the highway, and to stop his car after he knew, or, by the exercise of ordinary care, should have known, that he was unable to get the same out of the rut on the left side of the highway. The evidence showed that a rut had been formed on each side of the traveled portion of the highway, and that it was very difficult for the driver of plaintiff's car to get the hind wheels out of the same.

The evidence further disclosed, without conflict, that the driver of defendant's car was coasting down the hill without power, with the left wheels of the car in the rut on the right side of the track in which were the left wheels of plaintiff's car; that the driver of plaintiff's car attempted to turn the same out of the road to the right, but the hind wheels slid in the rut, and he was unable to get the car out of the rut. The defendant S. Tonne, who was driving the car, observed the situation of plaintiff's car and the effort of the driver thereof to get the same out of the way, but continued to coast down the hill, with the left wheel of his car in the rut on the left side of plaintiff. It must have been apparent to the defendant S. Tonne that, unless he turned further to the right, a collision was unavoidable. Had the driver of plaintiff's car stopped with the left hind wheel in the rut on the left side of the road, unless the defendant turned further to the right, or stopped, it would not have avoided the collision. The defendant S. Tonne testified that he made no effort, after he discovered that the driver of plaintiff's car was unable to get out of the road, to avoid the collision. He saw the peril of plaintiff's car when he was six rods away, and when he had his car under full control, and there was nothing to prevent him from turning to the right, and thereby avoiding a collision. It is no excuse for him now to say that he mistakenly thought that plaintiff's car would get out of the way. The danger of a collision must have been apparent to him, and he should not have taken chances. Of course, it was the duty of the driver of plaintiff's car to turn to the right, and give one half of the highway; but, by reason of his inability to get the hind wheel of the car out of the rut, he was unable to do this.

We fail to discover any evidence in the record tending to show negligence on the part of the driver of plaintiff's car. No evidence was offered tending to show that he was inexperienced or incompetent. The jury may have found against the defendant on its counterclaim, in which event, discussion of this question would, of course, be unnecessary; but, for reasons hereafter appearing, it is impossible to tell whether the jury found against defendant on the counterclaim or for both plaintiff and defendant. The motion to direct a verdict for plaintiff upon the counterclaim and to withdraw the same from the consideration of the jury should have been sustained.

II. Following the customary instructions upon the question of negligence, the court gave the following:

"If you find from the evidence that the plaintiff is entitled to recover some amount upon this petition against the defendant E. Tonne, and that the defendant E. Tonne is entitled to recover some amount against the plaintiff on his counterclaim, then you will take the lesser from the greater amount, and return your verdict for the difference in favor of the party entitled thereto. If the amounts are equal, your verdict should be for the defendant E. Tonne."

The error in this instruction is manifest. If plaintiff was guilty of negligence contributing to the injury complained of, he could not recover. Likewise, if the defendant was guilty of negligence contributing thereto, he could not recover. Plaintiff was entitled to recover, if at all, only if it appeared from a preponderance of the evidence that the negligence of the defendant was the proximate cause of the damages sustained, and...