Erickson v. Thompson

Decision Date04 May 1965
Docket NumberNo. 51556,51556
PartiesInez J. ERICKSON, Administratrix of the Estate of Joel Morris Erickson, Deceased, and Inez J. Erickson, Appellees, v. Duane Rodger THOMPSON, Appellant.
CourtIowa Supreme Court

Ross H. Sidney, of Austin, Grefe & Sidney, Des Moines, for appellant.

Larson & Larson, Story City, and Clark & Clark, Ames, for appellees.

PETERSON, Justice.

This is a law action for damages by plaintiff, for herself and Joel Morris Erickson's Estate. It stems from an automobile wreck which happened at the intersection of Highway No. 69 and an east and west gravel road, about five and one-half miles north of Ames in Story County. Plaintiff sued defendant, Duane Rodger Thompson, alleging he caused Mr. Erickson's car to be pushed across the highway into the opposite southbound lane of the highway, striking a car driven by one J. C. Gates, and causing fatal injuries to Mr. Erickson. Jury rendered a verdict for defendant. Upon plaintiff's motion the trial court granted a new trial. Defendant appeals.

I. On March 6, 1963, at about 3:00 P.M., Mr. Erickson was driving a 'Chevy' II Fordor sedan north on primary highway 69. He had reached the intersection where the collision occurred. Mr. Erickson was alone in his auto. Defendant, Duane Rodger Thompson, was following decedent driving a Ford station wagon some distance to the rear. Both cars were going north. Mr. Gates was on the opposite side of the highway driving south.

Mr. Morgan was proceeding north ahead of Mr. Erickson. Morgan turned off at the intersection above referred to and proceeded on the gravel road in an easterly direction. The only witnesses to what happened were Mr. and Mrs. Gates who were traveling south, and pulling some farm machinery behind the car. Defendant Thompson was driving the Ford station wagon following Mr. Erickson.

Outside of the testimony of Mr. and Mrs. Gates, the only other evidence on behalf of plaintiff was the testimony of the highway patrolman, the deputy sheriff and Morgan. The patrolman did not see the accident. He came to the scene a short while after the occurrence. He testified he examined the skid marks of Mr. Thompson's car. He said the skid marks started about 100 to 110 feet south of the intersection. They were clear and noticeable for at least the last 10 to 15 feet before the point of impact.

Mr. Gates testified he thought Mr. Erickson was driving slowly back of the Morgan car, which turned to the east immediately ahead of him. Mr. Thompson, the defendant, was the only witness on behalf of himself and he testified Mr. Erickson was stopped on the highway. He said he had driven over the crest of a hill about 600 feet to 700 feet south of the intersection.

When defendant drove over the crest he was going about 65 miles per hour. He then saw the cars in the distance, but not distinctly. He proceeded along highway 69, and when he came within 100 to 110 feet of the Erickson car he slowed up materially. He then noticed the Erickson car was stopped and that the gap between his car and the Erickson car was rapidly closing. When he was from 10 to 15 feet of the Erickson car he realized, since the car was stopped, that he might strike it. He could not drive to the left because Mr. Gates was driving south on that side of the roadway. He tried to drive to the right into the ditch, but there was apparently some snow or ice on the paving because his wheels would not turn. He then hit the Erickson car. It was pushed across the road into the Gates car and both cars went into the ditch on the west side of the paving. Mr. Thompson's car went into the ditch on the east side of the paving. He was somewhat dazed and was sitting in his car when the highway patrol officer came to the scene a short time afterwards. The officer sent him to the hospital. However, he was not seriously injured.

The matter of negligence of defendant was clearly a matter for the jury and the trial court so instructed, clearly and definitely.

The important question in this case is whether the trial court abused its discretion in granting a new trial. The court has broad and wide discretion in this field. Abuse must clearly appear before this court is justified in interfering and reversing such order by a trial court. Jordan v. Schantz, 220 Iowa 1251, 264 N.W. 259; Gregory v. Suhr, 221 Iowa 1283, 268 N.W. 14; Williams v. Kearney, 224 Iowa 1006, 278 N.W. 180; Mitchell v. Brennan, 213 Iowa 1375, 241 N.Y. 408; Eby v. Sanford, 223 Iowa 805, 273 N.W. 918.

It may be inferred from defendant's own testimony he had an unobstructed view of decedent's car from an elevated distance. Two disinterested witnesses fix the distance at 600 feet, and another at 600 to 700 feet. He admits he was traveling 65 miles an hour. He says he was unable to tell when he first saw the Chevy II whether it was moving or stopped, yet he proceeded without attempting to effectively reduce his speed until it was too late to avoid striking decedent's car, sending it into the opposite lane of this busy highway. This is persuasive evidence of defendant's negligence.

It appears not to be of vital importance whether decedent's car was stopped or moving slowly when defendant struck it from the rear. Defendant in effect admits he was alerted to the fact it may have been stopped when he was such a distance from it that the collision could have been avoided had he exercised reasonable care. From then on he had no right to assume it was moving.

Only defendant testified decedent was stopped. Morgan, a college graduate-school teacher, said he was sure decedent did not come to a stop. Gates, the southbound driver, testified decedent was still moving and he did not see him stop. Mrs. Gates testified that the last she saw immediately before the impact decedent's car was over on the east half of the highway, still moving. All three witnesses were disinterested.

It does not clearly appear it was an abuse of discretion for the trial court to feel the verdict was contrary to the evidence, or was not sustained by sufficient evidence, a ground for new trial by statute or rule for over 105 years. See rule 244(f), Rules of Civil Procedure, 58 I.C.A., and statutes superseded thereby. We have no difficulty finding in the instructions to the jury adequate basis for the grant of a new trial in the interest of justice.

II. The action was in two counts or divisions; the first by the widow as administratrix of decedent's second was by pecuniary loss thereto. The second was by the widow individually for her own loss of consortium between the times of his injury and death (just three months during which decedent, with two fractures in his skull, never regained consciousness). It is apparent, in view of the short period between injury and death, the widow could not have sustained a large amount of damages under the second count. Also, decedent and his wife were 59 and 56, respectively, at the time of injury and had been married only 2 1/2 years.

The court included in a single instruction (No. 6) what plaintiff (there were really two plaintiffs) in each count must prove in order to recover on both causes of action. In this vital instruction, probably--as is usually true--the most important of all, the jury was told: 'In order for plaintiff-administratrix and plaintiff herself in her own right to recover against defendant, she must prove by a preponderance of the evidence each and all of the following propositions.'

Propositions 1, 2 and 3 are, respectively, that defendant was negligent in one or more of the four respects charged; such negligence was the proximate cause of the injuries and damages sustained; decedent was not guilty of contributory negligence. The fourth proposition is: '4. That decedent's estate suffered damages as a result of the negligence of defendant, and the amount thereof, and that plaintiff herself suffered damages as a result of the negligence of defendant' (emphasis added).

Instruction 6 goes on to require a finding plaintiff-administratrix must prove each and all of the foregoing propositions by a preponderance of evidence in order to recover and a like finding in order for plaintiff in her own right to recover. The instruction then states, 'However, if you find that she has failed to prove * * * one or more of the foregoing propositions, then she cannot recover against defendant.'

The quoted parts of this instruction erroneously require proof that both the estate and the widow herself suffered damages in order for either to recover. Of course the estate should not have been compelled to prove, in order to recover on Count I, damages claimed by the widow in Count II. Nor, of less importance, should the widow have been compelled to prove, in order to recover on her Count II, damages claimed by the estate in Count I. Each count stated a separate cause of action and should have been so treated in the instructions. It is usually unwise to attempt to state in a single instruction what must be proved in order to recover on more than one cause of action.

The least that may fairly be said of instruction 6 is that it may have been very confusing to the jury. Whether viewed as erroneous, as we believe it was, or merely confusing, it may account for the verdict.

III. Instruction 8 deals with the familiar requirement of section 321.285, Code 1962, I.C.A., 'no person shall drive any vehicle * * * at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.'

Instruction 8 states: 'The second charge of negligence made by plaintiff-administratrix against defendant is that he failed to drive his automobile at a careful and prudent speed and at a speed greater than that which would permit him to bring it to a stop within the assured clear distance ahead.'

Thus the jury was told plaintiff charged defendant failed to drive at a speed greater than would permit him to stop within the assured clear distance. In fact plaintiff ...

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