Franzen v. Perlee

• Decision Date: 05 February 1952
• Docket Number: No. 48002,48002
• Citation: 51 N.W.2d 478,243 Iowa 285
• Parties: FRANZEN et al. v. PERLEE.
• Court: Iowa Supreme Court

Page 478

51 N.W.2d 478

243 Iowa 285

FRANZEN et al. v. PERLEE.

No. 48002.

Supreme Court of Iowa.

Feb. 5, 1952.

Zastrow, Noah & Smith, of Charles City, for appellant.

Geiser, Donohue & Wilkins, of New Hampton, for appellees.

WENNERSTRUM, Justice.

The administrators of the estate of H. M. Parson, deceased, seek recovery for damages to his estate because of his death as the result of an accident in which defendant was involved on October 26, 1950 on Highway 63 south of New Hampton, Iowa. Immediately prior to the accident H. M. Parson, the decedent, had been walking south on the east side of the paved highway. The defendant was driving an automobile in a southerly direction and it is claimed that he struck the decedent as the defendant was passing a truck also traveling south. The court submitted the case to the jury which returned a verdict in the sum of $7,500 in favor of the plaintiffs. The trial court overruled a motion for new trial conditioned upon the filing of a remittitur of $2,500 by the plaintiffs. This remittitur was subsequently filed by the plaintiffs. The defendant has appealed from the overruling of his motion for new trial and the later motion for judgment notwithstanding the verdict on the grounds which we will hereafter mention.

The decedent at the time of his death was 70 years of age and according to the stipulation made during the trial had a life expectancy of 8.99. He was the owner of a farm located approximately eight miles south of New Hampton. Prior to his death he had resided with his daughter and son-in-law, Mr. and Mrs. Albert Franzen. Roy Parson, approximately 30 years of age and a son of H. M. Parson, also resided with the Franzens. This son is shown to have an impediment in his speech. He has never been able to be gainfully employed for reasons not stated in the record and has been supported by his father.

Following the evening meal on the day of the accident and about 6:30 P. M., H. M. Parson and Roy left the Franzen home for the purpose of visiting a neighbor. After they reached the paved highway which passed the Franzen home, the father walked south on the east side of the highway and the young man walked in the same direction on the west side of it. Roy had a bicycle with him which he was not riding. The accident resulting in the death of appellees' decedent occurred as the appellant was passing a large tractor and semi-trailer. Section 321.1, subds. 6, 10, 1950 Code, I.C.A. It is the claim of the appellant that he first observed the decedent when he, the appellant, was 20 to 25 feet away. He testified that about a third of a second of time elapsed from the time of his first observation until his automobile struck the decedent. The appellant also states that he thought appellees' decedent was on the paved portion of the highway about two feet from the east edge of it at the time of the accident. Appellant also testified that at and before the time of the accident the lights of his car were on dim but they showed a distance ahead of about 300 feet. Roy Parson, the son, testified that he saw his father on the east shoulder of the highway until the semi-trailer came along, that his view was thereafter obstructed and he did not observe his father's later movements. He testified that following the accident his father was found in the ditch, that he found one of his shoes lying in the grass and that he observed a rip in the right leg of his overalls. He also testified that he heard glass fall as a car went by and that he found his father's hat on the east side of the paving.

It is further disclosed by the testimony of the appellant that he was driving a 1949 Chrysler Coupe and at or about the time of the accident the speed of his automobile was approximately 50 miles per hour; that he had accelerated his speed to a certain degree in order to pass the truck and that as he was passing it the decedent, Parson, walked out onto the pavement at a right angle; that Mr. Parson was approximately two feet from the east edge of the pavement at the time of the accident. The appellant further testified that he was at no time off the paved portion of the highway.

A deputy sheriff of Chickasaw County, Felton W. Cleveland, testified that he was at the scene of the accident and that he remembered Roy making a statement, 'I called my father to come on to the side where he belonged.' He also testified that he observed pieces of glass on the pavement and that he found it about three feet in from the east shoulder and scattered around a little. He also testified that later that evening at the sheriff's office Roy Parson again told him that he had called to his father to come over to his, Roy's, side of the road.

The appellant as grounds for reversal maintains: (1) the trial court erred in overruling appellant's motion for directed verdict and in also overruling his motion for judgment notwithstanding the verdict for the reason that the undisputed evidence shows the appellees' decedent was guilty of contributory negligence, and (2) the trial court erred in overruling his motion for directed verdict and in overruling his motion for judgment notwithstanding the verdict for the reason that the appellees failed to prove that the appellant was negligent in any manner and also failed to prove that the negligence, if any, on the part of the appellant was the proximate cause of the injury. It would thus appear that the sole question to be considered on this appeal is whether or not the trial court committed error in submitting the case to the jury and in not...