Draeger v. Heckman-Reynolds Co.

• Decision Date: 16 October 1956
• Docket Number: HECKMAN-REYNOLDS,No. 49072,49072
• Citation: 247 Iowa 1259,78 N.W.2d 851
• Parties: Emil G. DRAEGER, Appellant, v.COMPANY, a Co-Partnership, and K. E. Heckman and Robert Reynolds, Members Thereof, Appellees.
• Court: Iowa Supreme Court

Page 851

78 N.W.2d 851

247 Iowa 1259

Emil G. DRAEGER, Appellant, v. HECKMAN-REYNOLDS COMPANY, a Co-Partnership, and K. E. Heckman and Robert Reynolds, Members Thereof, Appellees.

No. 49072.

Supreme Court of Iowa.

Oct. 16, 1956.

Alfred A. Beardmore, Charles City, for appellant.

Zastrow, Noah & Smith, Charles City, for appellees.

PETERSON, Justice.

On June 13, 1955, at about 11:40 A.M., plaintiff was walking north near the middle of the block, across what is known as Hart Street in Charles City. Defendants had a contract with the city for improvement of the street. An employee was operating an earth moving machine known as a turnapull. Plaintiff testified he started across the street approximately 20 feet back of the machine. The turnapull is 32 feet 3 inches long, and 10 feet 7 inches wide. The wheels are 5 feet 6 inches in diameter. Its maximum reverse speed is 3 1/2 miles an hour. Hart Street is composed of two roadways with a parking area in the center. The south roadway, involved herein, is 16 feet wide. As plaintiff was crossing the street the turnapull started in reverse, in order to clear the pathway for a caterpillar moving into place just ahead. Plaintiff was almost across the street when he slipped, in getting on the parkway area, and fell under the left rear wheel of the machine. The wheel passed over him and he was seriously injured. The machine was stopped before the left front wheel passed over him. The District Judge submitted the case to the jury on two questions of negligence; failure to keep proper lookout, and failure to give warning as to intention to back up the machine. The usual instruction as to contributory negligence was given. The jury returned a verdict for defendants. Plaintiff filed motion for new trial, which was overruled, and he appeals on five alleged grounds of error.

I. The first allegation of error is appellant's objection to the court striking part of an answer of plaintiff to a question asked him on direct examination. The question, answer and motion to strike were as follows: 'Q. I see. Now, did you hear any warning sound that the Turnapull was going to back up? A. No, I might add that I thought he would have seen me from the side. I started to go across in front of him and then I changed my mind and went across in back of him because I thought if he would move he would go forward. (Defendants move to strike as the opinion and conclusion of the witness, voluntary statement, not called for by any question. Sustained, and Plaintiff excepts.)' The question asked was answered when the witness answered 'No'. Thereafter, the answer of the witness was a voluntary statement and his conclusion, and in addition thereto was the statement of a thought or opinion not connected with any factual situation. The line as between an observation based on something the witness thinks is going to happen from what he can see, and simply what he may have in his mind, is sometimes thin. 20 American Jurisprudence, Evidence, Sec. 765; Vandell v. Roewe, 232 Iowa 896, 6 N.W.2d 295; Knaus Truck Lines v. Commercial Freight Lines, 238 Iowa 1356, 29 N.W.2d 204; Marinan v. Chicago Rock Island & Pacific Ry. Co., 156 Iowa 457, 136 N.W. 884, 886. A sensible basis for the distinction is that independent ideas and thoughts of the witness are not admissible, whereas if there is some factual basis upon which a thought can be based, an admissible situation is created. This has no reference to expert opinions, under proper qualification. The analysis of this question in Marinan v. Chicago Rock Island & Pacific Railway Co., supra, is quoted with approval. In that case the witness testified he saw decedent walking from the curb toward the track and added the words "I thought he was going to stop". On objection the latter clause was stricken. The court said: 'While the answer might well have been permitted to stand, we think the ruling was not erroneous. The witness does not say that he drew the inference of which he speaks from anything in the appearance, attitude, or movement of the deceased, or state any fact to indicate that this expression, 'I thought he was going to stop,' refers to anything else than his own mental process. Had he said that 'Stender acted as if about to stop,' or that 'he hesitated and looked around as if about to stop,' or other words of similar import, it would come much nearer to admissibility under the rule rendering competent testimony which partakes of conclusion with reference to the personal appearance of one whose conduct is under inquiry. But the witness does not say this or its equivalent, nor was he further interrogated to bring out an explanation of his statement. The exception taken cannot be sustained.'

In 20 American Jurisprudence, Evidence, supra, the following statement is made: 'It is a fundamental principle of the law of evidence as administered by our courts, both in civil and criminal cases, that the testimony of witnesses upon matters within the scope of the common knowledge and experience of mankind, given upon the trial of a cause, must be confined to statements of concrete facts within their own observation, knowledge, and recollection--that is, facts perceived by the use of their own senses--as distinguished from their opinions, inferences, impressions, and conclusions drawn from such facts.' In Vandell v. Roewe, supra [232 Iowa 896, 6 N.W.2d 296], we said: 'Error is also assigned in this division for the sustaining of objection to a question whereby Brown was asked his opinion as to what he thought would be a safe rate of speed for one to drive over the crossing. The ruling appears to have been proper.'

We have held when a witness expresses an opinion the matter of its being received is largely within the discretion of the trial court. In Knaus Truck Lines v. Commercial Freight Lines, supra [238 Iowa 1356, 29 N.W.2d 210], we said: 'Plaintiffs asked their witness Wilcoxon, 'Q. Based upon your judgment or judging from your experience as a truck driver and traveling that kind of highway, what course would you say the Merchants took or could take after they saw this highway blocked?' * * * However we are inclined to hold the ruling was not an abuse of discretion.' (Emphasis ours.) We hold the ruling of the court was correct, and within his discretion.

II. The second and third errors urged by appellant pertain to the obligation on the part of defendants to erect barricades or warning signs. The court withdrew from the consideration of the jury the allegation of negligence in plaintiff's petition concerning this situation. Objection was made to failure of the court to instruct on this point.

There are certain obligations upon a municipality, or a contractor performing work for a municipality, to erect barricades or place warning signs, in connection with street improvements. If in the repairing of a street a hazardous situation is created so that traffic should not move upon the street, there is an obligation to place a barricade or warning sign at the end of the street, together with a red light during the darkness of night. If the condition of the street is such that there is no hazard involved along the street itself, the city or contractor has no obligation to place barricades or warning signs along the sides of a street. (Emphasis ours.) This is especially true where the condition can be discovered by the exercise of due care. 25 American Jurisprudence, Highways, 412; Ryan v. Foster, 137 Iowa 737, 115 N.W. 595, 21 L.R.A.,N.S., 969; Conklin v. Lincoln Traction Company, 130 Neb. 28, 263 N.W. 674.

This is the situation in this case. The improvement on Hart Street, up to the time of the injury, was that two large turnapulls had been removing some earth from the surface of the street. We presume the work was preliminary to paving. As the earth was removed the machines were packing the street so that a smooth surface remained at all times. There was a small mound of loose dirt pushed up on each side. As far as the street itself was concerned there was no hazard. Pedestrians crossed it as in normal times. Plaintiff was a man 67 years of age and apparently vigorous and alert and was especially interested in the improvement, and in the use and movement of the earth moving machinery. When the machines were working in another part of the city he had driven over to watch their operations. He lived close to Hart Street and on the morning of the accident came to the street at 8 or 9 o'clock and pointed out to the foreman the location of a new manhole near the intersection of Hart Street and Riverside Avenue. The evidence as given by plaintiff under cross-examination shows clearly that barriers and warnings signs had nothing to do with his injury. His testimony as to this matter is not lengthy and appears in the record as follows: 'As I stepped off the south side of the street I observed the turnapull, it was standing there with the motor running, there was an operator on the turnapull. As I stepped out in the street I was behind the turnapull and I continued to watch it. I was behind it when it began to move back, about twenty feet. I yelled, and when I got to the loose ledges along the curb I slipped, and those big wheels cover a lot of ground quick, before I knew it I was under the wheel. I was about 20 feet back when the machine started back, and I started to step up with one step and I slipped. One step would have put me on the parking, before I could get back the thing happened. * * * Q. But you do remember hearing the motor rev up? A. Yes. I had an idea I was about the middle of the machine when he started up that way; when I stepped up on this ledge I slipped.' The situation as depicted by plaintiff shows the reason for his injury was his foot slipped as he was stepping up on the parkway area in the street. He knew the machine was backing up and according to his own statement he was 20 feet back of the machine when it started. The Nebraska case of ...