Elzig v. Gudwangen

• Decision Date: 30 July 1937
• Docket Number: 10785.,No. 10784,10784
• Citation: 91 F.2d 434
• Parties: ELZIG v. GUDWANGEN. SAME v. DANIEL.
• Court: U.S. Court of Appeals — Eighth Circuit

91 F.2d 434 (1937)

ELZIG v. GUDWANGEN.

SAME v. DANIEL.

Nos. 10784, 10785.

Circuit Court of Appeals, Eighth Circuit.

July 30, 1937.

John A. Senneff, of Mason City, Iowa (Senneff, Bliss & Senneff, of Mason City, Iowa, and Meighen, Knudson & Sturtz, of Albert Lea, Minn., on the brief), for appellant.

Charles S. Kidder, of St. Paul, Minn., and Warren B. King, of Minneapolis, Minn. (Orr, Stark & Kidder, of St. Paul, Minn., on the brief), for appellees.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

Chester T. Daniel, at about two o'clock in the morning of November 20, 1934, was driving his Chevrolet four-door sedan north on U. S. Highway No. 65 in the State of Iowa. He, together with Miss Gudwangen, Miss Wichmann, and Miss Phillips, were returning from Manly, Iowa (where they had attended a dance), to Albert Lea, Minn., where they resided. Howard L. Elzig was driving a Chevrolet truck (with dual rear wheels), loaded with sacks of potatoes, south on this same highway. The two vehicles met at a point about 1½ miles south of Northwood, Iowa, and sideswiped each other, causing the death of Daniel and Miss Phillips and the serious injury of Miss Gudwangen. An action was brought against Elzig to recover for the death of Chester T. Daniel by the representative of his estate. Miss Gudwangen brought an action to recover for her injuries. The negligence charged against Elzig was the same in both complaints.

Elzig in each case denied that he was negligent, and alleged contributory negligence. The cases were tried together upon the same record and before the same jury. At the close of the evidence, the defendant, Elzig, moved for directed verdicts. His motions were denied. The jury rendered a separate general verdict for the plaintiff in each case. Judgments were entered upon the verdicts. Elzig moved for new trials, but his motions were denied. These appeals followed, and will be disposed of in one opinion.

The errors assigned challenge (1) the refusal of the court to direct verdicts for the defendant, (2) the giving by the court of certain instructions and its failure to give instructions requested, and (3) the overruling of the defendant's motions for new trials.

No exceptions were taken to the charge of the court or to the court's failure to give any instruction requested. Therefore, there are no rulings of the trial court with respect to instructions for this court to review.

The motions for new trials were addressed to the discretion of the trial court, and its action thereon may not be reviewed by this court. H. F. Wilcox Oil & Gas Co. v. Skidmore (C.C.A.8) 72 F.(2d) 748, 753; Southern Surety Co. v. United States (C.C. A.8) 23 F.(2d) 55, 59; Chicago, B. & Q. R. Co. v. Conway (C.C.A.8) 29 F.(2d) 551, 552; Booth v. Gilbert (C.C.A.8) 79 F.(2d) 790, 793; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481, 53 S.Ct. 252, 254, 77 L.Ed. 439.

The only question with which this court is concerned is whether the verdicts of the jury were sustained by any substantial evidence.

The sole ground of negligence with which Elzig was ultimately confronted was that he drove his truck over the center line of the highway into the east lane (the lane to his left), causing the collision with the Daniel car. Elzig contends that upon the trial he proved conclusively that his truck was always west of the center line of the highway, and that the Daniel car came into the west lane and struck his truck at a time when its left wheels were on the pavement west of the center line and its right wheels were on the west shoulder of the highway.

At the time the accident occurred, it was dark and raining. The highway is one of the heavily traveled highways running north and south through Iowa. The concrete pavement was 18 feet wide, and the center was marked by two parallel black lines. The distance from the outside of one of these lines to the outside of the other was 21 inches. The lines were 6 inches wide, with 9 inches of pavement between them. The shoulder on each side of the highway was approximately 9 feet wide, and the width of the entire roadway, including the pavement and shoulders, was approximately 36 feet. Beside Chester T. Daniel, who was driving the Daniel car, sat Miss Gudwangen. In the rear seat Miss Phillips sat on the left and Miss Wichmann on the right. The only windshield wiper was in front of the driver. The highway at the point of the collision was straight, but there was a curve to the east, just south of that point, and the Daniel car had just come around that curve. Elzig and a man named Runge were in the cab of the truck. Elzig was driving. At its widest point, the body or rack of the truck measured 7 feet 6 inches, and the truck and load together weighed approximately six tons. The left front of the Daniel car struck the left front fender and wheel of the Elzig truck. The body of the Daniel car then struck the loaded rack of the truck. The entire left side and the top of the car was carried away, and the left side of the rack of the truck was sheared off. When the two vehicles came to rest after the collision, they were 82 paces or approximately 246 feet apart. The car was on the east side of the highway in the ditch, and the truck, with the left front wheel off, was upon the highway facing in a southeasterly direction, with its front at about the center of the pavement, and the rear wheels on the west shoulder of the road. The truck had apparently moved from the point of impact at least 30 feet when its left front wheel came off. A scratch on the pavement several inches long running southeast toward the center of the pavement showed where the brake drum of that wheel had come into contact with the pavement before the truck finally came to rest. Potatoes from the truck and débris from the wreckage of both vehicles were scattered over the pavement between the two points where the vehicles eventually stopped. There is testimony tending to show that much, if not most, of the débris was on the west side of the pavement. Other evidence tended to show that most of it was on the east side. The body of Daniel was lying on the east side of the pavement, about 75 feet behind the wrecked sedan. The body of Miss Phillips was lying on the east side of the pavement, between the body of Daniel and the wreck of the sedan. Miss Gudwangen and Miss Wichmann both remained in the sedan until it stopped.

The first vehicle to reach the scene of the accident was a large semi-trailer, with dual wheels, driven by a man named Messer. He had been following the Elzig truck at a distance which he estimates at about two city blocks. He testified that he had been watching the tail lights of the truck, had seen them apparently move over to the right, but did not see the collision. He stopped his semi-trailer a short distance behind and north of the Elzig truck and got out to assist in preventing other vehicles from becoming involved in the wreck. At about the same time, a cattle truck of a Mr. Sater drove up from the south, and stopped on the east side of the pavement about opposite the front of the Elzig truck. A Mr. McGrady, who was with Sater, got out of the cab of the Sater truck to clear away the débris in front of that truck, so that it could go through. Sater went to assist the occupants of the wrecked sedan. He found the two bodies on the pavement, and one woman in the sedan. It appears that Miss Wichmann had gotten out of the sedan before Sater reached it. A touring car driven by a Mr. Larson then came from the south and was stopped. It was filled with young people who had attended the dance at Manly. Those who were in the back seat of the Larson car got out, and Sater and others placed Miss Gudwangen and Miss Phillips in the car. Miss Wichmann, who, it appears, was not disabled, also entered the car, and the injured were then taken in to Northwood by Larson. Neither Elzig nor Runge, who was riding with him, was hurt.

Miss Gudwangen, Miss Wichmann, Mr. Elzig, and Mr. Runge were apparently the only eyewitnesses of this accident living at the time of the trial. Miss Gudwangen and Miss Wichmann testified positively that the Daniel car was, at the time of the collision, in the east lane of the pavement and that the Elzig truck came into the east lane and struck the Daniel car. Mr. Elzig and Mr. Runge denied that the Elzig truck was ever east of the center line of the highway. Elzig's account of the accident is substantially this: He was driving about 30 miles an hour approaching the curve. He saw the Daniel car as it made the curve. When it was about 250 or 300 feet away, it appeared to him to be going too fast and to be about two-thirds over on the west side of the pavement. The pavement was wet and slippery. Elzig took his foot off the throttle and ran his right wheels onto the soft shoulder of the road and continued in that position, with only about two feet of his truck on the pavement, until his truck was sideswiped by the Daniel car, which, when within about 50 feet of the truck, first swerved to the east and then swerved back to the west, so that it was almost entirely in the west lane at the time it struck his truck. Elzig estimates the speed of his truck, at the time the collision occurred, at 20 miles an hour.

There is, therefore, a direct conflict in the testimony of those who were present when the accident occurred, and if they had been the only witnesses who testified, the case would clearly have been one for the jury. The troublesome question arises from the testimony as to the dual wheel track on the west shoulder of the road apparently made by the Elzig truck.

Elzig testified that, after the débris obstructing the pavement was cleared away and the injured persons were sent to Northwood, he and Messer and two other truck drivers, who had come upon the scene, examined with a flashlight the dual wheel track which his truck had made on the shoulder of the road; that they trailed the...