Dorcas v. Aikman

• Decision Date: 14 June 1966
• Docket Number: No. 52022,52022
• Citation: 259 Iowa 63,143 N.W.2d 396
• Parties: Mary H. DORCAS, Executrix of the Estate of Byron M. Dorcas, Deceased, Appellant, v. Floyd Ambrose AIKMAN, Appellee.
• Court: Iowa Supreme Court

Page 396

143 N.W.2d 396

259 Iowa 63

Mary H. DORCAS, Executrix of the Estate of Byron M. Dorcas, Deceased, Appellant, v. Floyd Ambrose AIKMAN, Appellee.

No. 52022.

Supreme Court of Iowa.

June 14, 1966.

Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, and Sebesta & Kuehnle, Mechanicsville, for appellant.

James T. Remley, Anamosa, and Keyes, Crawford & Bradley, Cedar Rapids, for appellee.

MOORE, Justice.

This is a damage action for the death of Byron M. Dorcas caused when his truck was struck from the rear by defendant's automobile September 11, 1961 on Highway 38 approximately three miles north of Tipton in Cedar County. From judgment on verdict for defendant plaintiff has appealed.

On a prior appeal from a verdict and judgment in favor of defendant we reversed because of failure to properly instruct on the question of decedent's contributory negligence. See Dorcas v. Aikman, 256 Iowa 308, 126 N.W.2d 298. We do not have the same problem on this appeal.

Plaintiff asserts the trial court erred in: (1) giving instructions 9, 10 and 17; (2) failing to give plaintiff's requested instructions 2, 5, 7 and 8; (3) refusing to submit last clear chance; (4) not submitting improper speed under the cricumstances and (5) not submitting her allegation defendant was driving with defective brakes.

The facts here are substantially the same as in the first trial. About 9:30 a.m. September 11, 1961 Byron M. Dorcas, age 53, was driving his 1949 Chevrolet truck south on Highway 38 and started to slow down about 200 feet north of his farm lane. As he was turning to the right or stopped near the entrance to the lane, his vehicle was struck from the rear by defendant's 1945 Studebaker knocking the truck over on its left side. Mr. Dorcas was thrown out and the truck rolled over on him causing his death. Stanley Rose who farmed with Dorcas was in another truck stopped in the lane near the highway and saw the collision. His testimony given at the first trial was read into the record on the second trial. He testified he first observed Dorcas 200 yards north of the lane on the west side of the road starting to slow down, as he approached the lane Dorcas started to make his turn to the right and then the truck was struck from the rear by defendant's automobile. He further testified he did not see defendant's vehicle until the truck was approximately 100 yards from the lane, he supposed defendant was then driving at moderate speed, he did not observe any attempt by defendant to stop until just as few seconds before the collision, he was unable to estimate defendant's speed at the time of collision and after the impact defendant's automibile went across the center line to the east and collided with another vehicle coming from the south. Rose stated he observed no sudden slowing down or stop of the truck. He saw no signal light working on the truck.

Plaintiff read into the record portions of defendant's deposition, including the following:

'Q. When you first saw him (Dorcas) how far was he ahead of you? A. Oh, probably a third of the distance from the hill to where he turned off. * * *

'Q. Would you know, Mr. Aikman, how far that would be in feet? Two or three hundred feet? A. No.

'Q. Could you give me your best judgment on that? A. Well, it could be a quater of a mile. If it was a quarter of a mile that should be 500 feet or more.

'Q. How far was he in front of you when you saw him slow down? A. Oh, he was probably that far ahead of me then.

'Q. He was about the same distance ahead of you at the time you saw him slow down as he was when you first saw him? A. Approximately.

'Q. And you think maybe 500 feet? A. Yes, I would say that much at least.

'Q. How far was he from the lane when you saw him start to slow down? A. That would be hard to say.

'Q. I know it is, Mr. Aikman, but give us your best idea. A. He wasn't too far.

'Q. Well, 50 feet, 100 feet? A. Oh, about 100 probably.

'Q. About 100 feet when you saw him start to turn in? A. Yes, from the time he started slowing down and turned in.

'Q. And at that time you were about 500 feet at least behind him, weren't you? A. Well, somewhere in there.

'Q. Did you start to stop, yourself, at that time? A. I slowed up figuring on going up--slowing up enough for him to get off the pavement.

'Q. How fast were you going? A. Well, I wouldn't say much over 60.

'Q. How fast was he going, do you know? A. No, I couldn't say.

'Q. After the time you first saw him when you came up over the top of the hill, down to where you say he turned off, did you make any judgment of his speed? A. No.

'Q. Can you tell us how fast you think he was going? A. I couldn't say how fast he was going. I was judging my speed according to his, so I would have room to get behind him without braking too hard.

'Q. When you were at least 500 feet from him you knew that he was slowing down and was going to turn, didn't you? A. I didn't know he was going to turn right at the time he started slowing down.

'Q. You knew he was either going to stop or turn, didn't you? A. I figured he was going to do something of the sort.

'Q. And at the time you struck him you were entirely on the pavement, weren't you? A. Yes.

'Q. And what part of the truck did you hit? A. The back and under the box; under the box.

'Q. Did that turn him over--? A. It must have.'

As cross-examination defendant read into the record other portions of his deposition, including:

'Q. As I understand it, this truck came to a complete stop? A. That is right.

'Q. And was on the pavement? A. On the pavement.

'Q. Before this truck came to a complete stop did he to your knowledge give any signal at all? A. No.

'Q. To your knowledge did any signals flash on his truck? A. No.

'Q. Did he give you any hand signal or any indication that he was going to stop? A. No.

'Q. And the first thing you knew, Boom, he had stopped, and that was it? A. Yes.'

Iowa highway patrolman Richard Ward was called to the scene. He testified he checked the turn signals and stop lights on the truck and none would flash. On inspection he found the wires which ordinarily connect to the rear signals were disconnected, hanging down and caked with dried mud. The hole where the wires would ordinarily go was also caked with dried mud. He expressed the opinion the lights were not disconnected as a result of the accident. There was no apparent visible damage to them. The sheriff gave substantially the same testimony, including: 'The right turn light wire was disconnected, covered with mud and dirt. The hold the wire would go into on the right turn light itself was covered with mud, or hardened mud, which had apparently been on there for some time. The end of the disconnected wire was covered with hardened mud also. All the lights were covered over with dirt, and none of them worked when checked.'

Ward identified photographs taken soon after the accident and described a skid mark made by defendant's right front wheel. It started just off the west edge of the pavement and continued southeasterly 83 feet to the point of impact which was 4 feet 7 inches east of the west edge of the pavement. From the point of impact to where defendant's automobile stopped, a distance of 57 feet, there were unbroken marks on the pavement. Ward observed no other skid marks. Over objection he testified the law required a vehicle under 5000 pounds be equipped with brakes capable of stopping the vehicle traveling 20 miles per hour within 30 feet.

The sheriff testified he observed the 83 foot skid mark made by defendant's right front wheel but found no others.

I. Plaintiff asserts the trial court erred in giving instruction 17. It reads: 'Upon retiring to consider the case, your first duty will be to elect a foreman. Your foreman will act as Chairman. It will be his or her duty to see that discussion is carried on in an orderly fashion; that the issues are fully and freely discussed; and that every juror is given an opportunity to express his or her views. When ballots are taken, the foreman will see that it is done and will sign the form of verdict which accords with your finding. Your verdict must be unanimous.

'The attitude of jurors at the outset of your deliberations is important. It is seldom productive of good for a juror, upon entering the jury room, to make an emphatic expression of his opinion or to announce a determination to stand for a certain verdict. When a juror does this at the outset, individual pride may become involved and the juror may later hesitate to recede from an announced position even if shown that it may be incorrect. You will remember that you are not partisans or advocates, but are judges--judges of the facts. Your sole interest should be to ascertain the truth and do exact justice to both the plaintiff and the defendant in this case.

'When you have reached your verdict, you will notify the bailiff in charge, and return into open court with your verdict, the exhibits, and these instructions.'

Plaintiff argues this instruction advises the jury how to deliberate, what their attitude should be, when and how they should announce their determination to arrive at a verdict and thereby enters a field belonging to the jury alone. We do not agree. An instruction relative to duties of jurors is proper. Burton v. Neill, 140 Iowa 141, 143, 118 N.W. 302, 303; Armstrong v. James & Co., 155 Iowa 562, 568, 136 N.W. 686, 688. See also Anno. 19 A.L.R.2d 1257.

Instruction 17 contains some of the statements and thoughts included in the verdict urging instruction we approved in State v. Gillam, 230 Iowa 1287, 1292, 1293, 300 N.W. 567, 569, 570. The statements in instruction 17 are not as strong as some contained in the approved instruction. It contains no suggestion of coercion and does not include the feature of a verdict urging instruction we disapproved in Mt. Hamill St. Sav. Bank v. Hughes, 196 Iowa 861, 864, 195 N.W. 589, 590, and the cited cases.

If giving such an...