Ehrhardt v. Ruan Transport Corp.

• Decision Date: 15 December 1953
• Docket Number: No. 48354,48354
• Citation: 61 N.W.2d 696,245 Iowa 193
• Parties: EHRHARDT et al. v. RUAN TRANSPORT CORP. et al.
• Court: Iowa Supreme Court

Page 696

61 N.W.2d 696

245 Iowa 193

EHRHARDT et al. v. RUAN TRANSPORT CORP. et al.

No. 48354.

Supreme Court of Iowa.

Dec. 15, 1953.

Jordan & Jordan, Cedar Rapids, for appellants.

V. C. Shuttleworth and C. W. Garberson, Cedar Rapids, for appellees.

Larson, Justice.

This collision on Highway 13 about 8 miles north of Manchester, Iowa, occurred on December 14, 1948, about 3:00 or 3:30 P.M. The plaintiff Edward H. Ehrhardt was operating a 1947 Chevrolet 1 1/2 ton truck owned by his employer, the plaintiffs Edward F. Hopton and Gene Hopton, d/b/a Cedar Rapids Renderers, loaded with about a ton of deceased cattle and hogs, when it collided with the defendant Ruan Transport Corporation's tractor-trailer carrying some 5,000 gallons of gasoline and weighing about 55,000 pounds, operated by the defendant Robert Wayne Scott. The Renderers' truck was south bound and the Ruan transport north bound. The pavement at this point was straight, with a down slope to the north and which turns up again a short distance north of the point of collision. It was raining, sleeting and misting, and the pavement was like glass. Both drivers could see ahead, but not clearly. Plaintiffs' truck was traveling about 12 or 15 miles per hour and defendants' about 20 or 25 miles per hour. There were no eye witnesses except the drivers of the involved vehicles. Their testimony was somewhat in conflict. The jury denied recovery by the plaintiffs and also refused recovery by the defendants on their counterclaim.

Defendants assign three grounds of error. They contend that the trial court erred in failing to include in the statement of the issues and instructions thereon counterclaimants' specification of negligence designated 7(c) which stated: 'In failing to keep control of their equipment under the conditions then and there existing, including the condition of the highway at the point of meeting', and also counterclaimants' specification of negligence designated 7(d): 'In failing to keep a proper lookout at or about the time of meeting on said highway in view of the conditions then and there existing.'

In instructing the jury on the claims of both plaintiffs and defendant-counterclaimants, the trial court submitted only the issue of the drivers' negligence in failing to yield one-half the traveled way.

I. The evidence is meager bearing on the question of where and how the impact occurred. However, it is true that in passing on the sufficiency of the evidence to justify the submission of the issues 7(c) and 7(d) to the jury, the testimony must be viewed in the light most favorable to the defendant-counterclaimants herein. Hebert v. Allen, 241 Iowa 684, 687, 41 N.W.2d 240, 242, and citations. Robson v. Barnett, 241 Iowa 1066, 1068, 44 N.W.2d 382.

We shall consider the issues relating to 7(c) and 7(d) together, though even the defendants admit the evidence as to failure to maintain a proper lookout is slight. We have held that a car is 'under control' within the meaning of the law if it is moving at such a rate, and the driver has the mechanism and power under such control, that it can be brought to a stop with a reasonable degree of celerity. Carruthers v. Campbell, 195 Iowa 390, 392, 192 N.W. 138, 28 A.L.R. 949; Carlson v. Meusberger, 200 Iowa 65, 76, 204 N.W. 432.

In Gilbert v. Vanderwaal, 181 Iowa 685, 165 N.W. 165, we also held that having a car under control refers to the ability to stop the car within a reasonable distance in view of the circumstances, and this holding was quoted with approval in Duncan v. Rhomberg, 212 Iowa 389, 236 N.W. 638. These definitions of the term, of course, are broad enough to include a necessary change in the direction of movement. Johnson v. Kinnan, 195 Iowa 720, 723, 192 N.W. 863, 865. We said there: 'Likewise the ability to divert or change its course, may be properly involved in the question of control.' Also see Lynes v. Schmolt, 241 Iowa 1303, 1306, 45 N.W.2d 221, 222. Turning then to the testimony which defendant-counterclaimants rely upon as the basis of their claim that the court erred in not submitting specification 7(c) to the jury, Ehrhardt testified that he had his windshield wiper going, was on his half of the highway driving southward at about 12 or 15 miles per hour; that he saw the Ruan truck a quarter of a mile away and noted its lights were on; that he was poking along and had a habit of coasting by approaching vehicles when on ice. He stated that as the Ruan truck approached it looked as if the dual wheels were across the black center line, and that there wasn't room to pass on that piece of pavement. It seemed to him as if the duals were over the center line ten inches. He stayed as he was until just before meeting defendant, and then he tried to get his wheels over. As he turned to the right the collision occurred. There is a half curb along each side of the 18 foot pavement of about 12 inches on each side, which would make the smooth part of the pavement only 16 feet wide at that point. The duals on the north bound tractor-trailer were 7 1/2 feet wide and this was the rig's widest part. Plaintiff said he was unable to get his wheel over the half curb to get out on the shoulder and, as he tried, they hit. He did not believe his truck moved to the right or left before the crash. He was rendered unconscious for some three to five minutes. His truck was then in the grass on the west side of the pavement headed west, with the rear end some two feet off the pavement. The radiator and left front fender were smashed.

The sheriff and a highway patrolman arrived at the scene of the accident some thirty or forty minutes later and, even from their experience, were unable to draw any conclusions from the physical aspects of the situation, and by examining the pictures they were still unable to find anything to signify where or on what half of the highway the accident occurred.

Floyd Knickerbocker, who lives near the scene and who recalled waving to the plaintiff Ehrhardt as he passed just before the collision, had turned away and did not see the accident. Before turning away, however, he had seen both vehicles and noted that they were not going fast. While he was some distance from the Ruan truck, it seemed to be on its own side and coming in a straight line. He observed Ehrhardt was also going in a straight line, but had the impression he was going to get up on the shoulder at the spillway before meeting the Ruan truck. He did not say he saw this occur, and did not look further until he heard the crash.

The only other witness was defendant driver Scott, who said he was moving about 20 or 25 miles per hour. He saw the Renderers' truck about a quarter of a mile away and watched it all the time. He could see the black center line, and was moving on a down slope not too steep, when they collided. He stated that plaintiff was on his own side of the road until he got to the spillway, and then he tried to get up on his shoulder with his front wheels. He did get his front wheels on the shoulder, but his duals were sliding along the edge of the curbway with the duals out sideways, and that was his position in the road. Regardless, defendant Scott kept coming on, believing everything was all right if plaintiff kept coming like he was, and the next thing he knew he was on fire. This was his testimony of the occurrences in the last one hundred and fifty feet. Scott further testified that the front end of the Renderers' truck collided with his tractor, striking his duals back of his cab, the widest part of his equipment. He claimed the impact came on his side of the pavement, but that it did not involve the front end of his tractor. After the crash Scott's vehicle went out of control and slid down the pavement 250 feet, coming to rest in the spillway headed west on the west side of the road. It was afire and burned. On cross-examination defendant Scott was asked:

'Q. If you were on your own side of the road why would Mr. Ehrhardt attempt to pull off? A. That is one question I can't answer. I don't know why the man tried to pull onto the shoulder. It being slippery he should have known better, that you can't get over the half curb.

* * *

* * *

'Q. When a man does that he usually has a reason for it? A. In my estimation it is poor driving for anyone to pull off onto the shoulder when meeting a vehicle.

'Q. If in the opinion of that driver it is better than a collision, it is. A. Not if the other fellow is in the right lane of traffic.

'Q. But Mr. Ehrhardt made an attempt to pull to the right as he met you? A. That's right.

'Q. There is no question about it? A. There is no question about it.'

He further testified on cross-examination that it looked to him at though Mr. Ehrhardt got scared coming up the pavement sideways and tried to straighten up and then came across the pavement and knocked the dual drivers from the Ruan truck. Scott, however, did not see that action. We have held many times that a mere scintilla of evidence is not sufficient to support recovery. Robson v. Barnett, supra, 241 Iowa 1066, 44 N.W.2d 382; Spaulding v. Miller, 220 Iowa 1107, 264 N.W. 8, and citations; In re Estate of Kenny, 233 Iowa 600, 603, 10 N.W.2d 73, 76.

There can be no doubt of the general rule that where reasonable minds might find from the evidence that a defendant was negligent in one of the respects alleged in the petition, such charge of negligence must be submitted to the jury. Hanson v. Manning, 213 Iowa 625, 629, 239 N.W. 793; Lorimer v. Hutchinson Ice Cream Co., 216 Iowa 384, 389, 249 N.W. 220; Townsend v. Armstrong, 220 Iowa 396, 400, 260 N.W. 17.

II. However, here it must be quite clear that the only testimony tending to prove that plaintiff had lost control of his vehicle was that he had attempted to turn to the right and get over onto to right shoulder of the highway when meeting the other vehicle. This is the very thing required of one when meeting another on the public highway, and...