Duncan v. Rhomberg

• Decision Date: 05 May 1931
• Docket Number: No. 40651.,40651.
• Citation: Duncan v. Rhomberg, 212 Iowa 389, 236 N.W. 638 (Iowa 1931)
• Parties: DUNCAN v. RHOMBERG ET AL.
• Court: Iowa Supreme Court

212 Iowa 389

236 N.W. 638

DUNCAN

v.RHOMBERG ET AL.

No. 40651.

Supreme Court of Iowa.

May 5, 1931.

Appeal from District Court, Dubuque County; P. J. Nelson, Judge.

Action for damages for personal injury sustained by the plaintiff as the result of a collision between automobiles.Trial to the court and a jury.Verdict and judgment for the plaintiff.Defendants appeal.

Affirmed.Kane & Cooney and Hugh Stuart, all of Dubuque, for appellants.

Kenline, Roedell, Hoffmann & Tierney, of Dubuque, for appellee.

WAGNER, J.

The defendantLouis Rhomberg, nineteen years of age, is the son of the other defendant, Mrs. T. E. Rhomberg.The mother is the owner of a Cadillac automobile.It is alleged in the petition that the automobile at the time in question was being driven by the son with the consent of the mother.The grounds of negligence charged in the petition are: (1) In failing to drive said automobile at a careful and prudent speed not greater than was reasonable and proper, having due regard to the traffic, surface, and width of the highway, and of any other conditions then existing; (2) in failing to reduce the speed of said automobile to a reasonable and proper rate when approaching and traversing a curve; (3) in failing, when meeting the auto in which the plaintiff was riding, to give one-half of the traveled way of the public highway by turning to the right; (4) in driving said automobile at an excessive rate of speed; (5) in not bringing said automobile to a stop before colliding with the automobile in which plaintiff was riding.

[1][2]The plaintiff was a guest, riding at the time in question in a Studebaker automobile driven by one Morton.The collision occurred on United States HighwayNo. 20, a paved primary road leading from Dubuque through the town of Farley to Dyersville.The concrete pavement is 18 feet wide, with a black line in the center thereof; on each side of the pavement there is an earth shoulder, 4 or 5 feet in width.The defendantLouis Rhomberg was driving his mother's Cadillac automobile, and he and a young lady companion were proceeding westerly upon said highway, and the automobile in which the plaintiff was riding was proceeding in the opposite direction.At the west side of the town of Farley there is a sharp curve to the right, and from said curve the highway is straight for a distance of 1,629 feet, when a long, swinging curve 1,093 feet in length is reached; about midway between the two ends of this long curve there is a dirt road leading north therefrom.The collision occurred on the pavement shortly west of this dirt road between 10 and 11 o'clock on the evening of September 5, 1929.The county fair was in progress at Dyersville, and about 10:15 p. m. a Studebaker car owned and driven by Morton, and a Chrysler sedan owned and driven by Mr. Arquitt, left the fair grounds at the same time.Mr. Morton and Mr. Duncan occupied the front seat, and their wives the rear, seat of the Studebaker.They proceeded easterly upon the highway in question; the Morton car being followed by the Arquitt car.Proceeding in the same direction ahead of Morton was a Ford, driven by Hook.As these three cars proceeded easterly, in coming into the long, swinging curve, the Morton car was about 50 feet behind the Hook car, and the Arquitt car about the same distance behind the Morton car.The lights on all the cars were turned on.There is no testimony that the cars proceeding easterly were traveling at an excessive rate of speed.The uncontradicted testimony is that the Morton car was to the right of the center of the pavement and near the shoulder; the same is also true as to the Arquitt car.The testimony in behalf of the defendants is to the effect that Hook was driving the Ford car “astraddle” of the black center line of the pavement, while the testimony in behalf of the plaintiff is to the effect that Hook was driving to the right of the center of the highway.Therefore this question was for the jury.

There is much testimony that at and immediately prior to the collision Rhomberg was driving from 50 to 60 miles per hour, and that he did not slow down as he approached or entered the easterly end of the long, swinging curve.The testimony in this respect is denied by Rhomberg and his lady friend.Because of the conflict in the testimony, this also became a question for the jury.Some part of the left side of the Rhomberg car struck the left side of the Hook car in passing, only slightly damaging the Ford car.Morton had turned on the dimmers on the Studebaker car.After the impact between the Ford and the Cadillac, the Cadillac proceeded westerly and collided with the Studebaker driven by Morton, and in which the plaintiff was riding.The left front wheel of the Cadillac was completely demolished, as was also that of the Studebaker.The Studebaker was thrown clear of the pavement, with the rear wheels resting in the ditch 4 or 5 feet deep, and the front wheels extending upward upon the shoulder of the highway.

The testimony in behalf of the plaintiff is to the effect that the Cadillac still continued in a westerly direction, colliding with the right-hand side of the Arquitt car standing near the south edge of the pavement, breaking the right bumper, spring, and fender of the Arquitt car.The Cadillac was finally stopped on the shoulder of the highway just at the edge of the south ditch and west from the Arquitt car.There is testimony, that, from the point of the collision of the Cadillac and Studebaker, there was a hole in the pavement a quarter of an inch or more in depth and a well-defined line of abrasion upon the pavement for a distance of some 40 feet to where the Cadillac was finally stopped.The plaintiff was severely injured in her right leg; her left ankle was badly sprained; her right leg had five cuts upon it, one above the knee, two in the vicinity of the knee, and two below the knee; it required eighteen stitches to repair the wounds.The most serious injury is at the knee, and there is medical testimony, although the same is denied by like testimony, that her injury is permanent--that the disability in the movement of the right knee at the time of the trial was about 25 per cent., and that there will be from 10 to 15 per cent. permanent disability.While there is other testimony in the record, the foregoing is sufficient for the determination of the legal propositions submitted.

[3][4][5] Immediately after the injury, the plaintiff was removed from the Morton car, as located in the ditch, and assisted to the Arquitt car, on the pavement, and taken to her home in Farley.Before she was removed from the car, the witness Ruh appeared upon the scene and rendered assistance in this act.He there saw the defendantLouis Rhomberg.Ruh testified that, as he assisted the injured lady, he heard the defendantLouis Rhomberg, make a statement, and was asked by the plaintiff's counsel to tell what statement he made: “Q.Justuse the exact words Mr. Rhomberg used according to your best recollection, the words he used then and there.” and the witness answered: “He(Louis Rhomberg) says ‘I know I was driving fast.’ ”Both defendants objected to the question, for the reasons that the testimony elicited is incompetent, irrelevant, and immaterial, not binding upon the defendantMrs. T. E. Rhomberg, and that it is no part of the res gestæ, and moved to exclude the answer for the same reasons.The court overruled the objection and motion, holding that the testimony was a part of the res gestæ.The appellants complain that this ruling is erroneous.The testimony was clearly admissible as against the defendantLouis Rhomberg.Was it admissible as a part of the res gestæ?The appellants rely upon our recent pronouncements in Cooley v. Killingsworth, 209 Iowa, 646, 228 N. W. 880, andLooney v. Parker, 230 N. W. 570.It is true that we have held that, while such declarations or admissions of the driver of the car, not a part of the res gestæ, are admissible as against the driver, they are not admissible as against the owner of the car.SeeWilkinson v. Queal Lumber Co., 208 Iowa, 933, 226 N. W. 43;Looney v. Parker (Iowa)230 N. W. 570;Wieneke v. Steinke (Iowa)233 N. W. 535;Cooley v. Killingsworth, 209 Iowa, 646, 228 N. W. 880;Ege v. Born (Iowa)236 N. W. 75.But we have not held that declarations of this kind are not admissible when they are a part of the res gestæ.Statements made as part of the res gestæ are substantive evidence of the matters stated.We have no doubt as to the admissibility of the statement as a part of the res gestæ.SeeAlsever v. Minneapolis & St. Louis Railroad Co., 115 Iowa, 338, 88 N. W. 841, 56 L. R. A. 748;Keyes v. City of Cedar Falls, 107 Iowa, 509, 78 N. W. 227;Bettinger, Adm'r, v. Loring et al., 168 Iowa, 103, 150 N. W. 31;Sutcliffe v. Iowa State Traveling Men's Association, 119 Iowa, 220, 93 N. W. 90, 97 Am. St. Rep. 298;Smith v. Dawley, 92 Iowa, 312, 60 N. W. 625;Christopherson, Administratrix, v. Chicago, Milwaukee & St. Paul R. R. Co., 135 Iowa, 409, 109 N. W. 1077, 124 Am. St. Rep. 284;Stukas v. Warfield-Pratt-Howell Co., 188 Iowa, 878, 175 N. W. 81;Lynch v. Egypt Coal Co., 190 Iowa, 1272, 181 N. W. 385;State v. Minella, 177 Iowa, 283, 158 N. W. 645.It must be borne in mind that this statement was made by the defendantLouis Rhomberg before or during the time when the plaintiff was being removed from the precarious position in which the collision with the car which he was driving had placed her.The fact that he may have been driving his mother's car with her consent and occupied the relationship of, or one similar to, that of agent, does not prevent the admission of the testimony as a part of the res gestæ.SeeAlsever v. Minneapolis & St. Louis Railroad Co., 115 Iowa, 338, 88 N. W. 841, 842, 56 L. R. A. 748;Bettinger, Adm'r, v. Loring, 168 Iowa, 103, 150 N. W. 31.

In the Alsever Case we declared: “Neither can it make any difference that the statement was...