Fullerton v. Sauer

• Decision Date: 27 October 1964
• Docket Number: No. 17713,17714.,17713
• Citation: 337 F.2d 474
• Parties: Roy Lavern FULLERTON and Dorothy M. Fullerton, Appellants, v. Melvin SAUER, Administrator of the Estate of Dwane Sauer, Deceased, Appellee. Roy Lavern FULLERTON and Dorothy M. Fullerton, Appellants, v. Bernard G. FLEETWOOD, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

337 F.2d 474 (1964)

Roy Lavern FULLERTON and Dorothy M. Fullerton, Appellants, v. Melvin SAUER, Administrator of the Estate of Dwane Sauer, Deceased, Appellee.

Roy Lavern FULLERTON and Dorothy M. Fullerton, Appellants, v. Bernard G. FLEETWOOD, Appellee.

Nos. 17713, 17714.

United States Court of Appeals Eighth Circuit.

October 27, 1964.

John D. Randall, Cedar Rapids, Iowa, for appellants.

John L. Butler, of Lundy, Butler, Wilson & Hall, Eldora, Iowa, James E. Roan, of Mickelson & Roan, Toledo, Iowa, and Ralph W. Gearhart, of Shuttleworth & Ingersoll, Cedar Rapids, Iowa, for appellees.

Before VOGEL, VAN OOSTERHOUT and MEHAFFY, Circuit Judges.

VOGEL, Circuit Judge.

These are civil actions for money damages. They arise out of an automobile accident, were consolidated for trial and tried before the same jury. The parties will be designated as they were in the court below. Plaintiff Melvin Sauer is the administrator of the estate of his son, Dwane, who was killed in the accident. He brought suit for wrongful death against Roy Lavern Fullerton and Dorothy M. Fullerton, husband and wife, defendants. In the second suit, Bernard G. Fleetwood sued the Fullertons for his personal injuries. Diversity of citizenship and the amount involved in each case satisfied federal court jurisdictional requirements.

The defendants answered and counterclaimed for personal injuries and damage to their automobile. The jury returned verdicts for each of the plaintiffs. From judgments entered thereon defendants appeal.

A stipulation of facts between the parties and read to the jury indicates, in summary, that on August 28, 1960, the defendants, accompanied by their four children, were driving their family car, a 1955 Ford Tudor sedan, in an easterly direction on paved U.S. Highway No. 30 approximately eight miles east of Tama, Iowa. After cresting a hill and proceeding down the east incline thereof a distance of approximately 500 feet, they came upon a car with a "U-Haul" trailer mired in the mud off the paving on the south shoulder. Defendants noticed that a man, a woman and two children were occupants of the disabled vehicle. The time was about 6:30 p. m. The weather was cloudy, a light rain was falling, the pavement was wet. Mr. Fullerton, who was driving, proceeded on east past the disabled car to the first road intersection, turned around and came back. He drove west of the disabled vehicle and trailer, up and beyond the crest of the hill, until he got to a place where he could again turn around. He did so, returning east. At a point just to the west of the crest of the hill he stationed his 13-year-old son, Steven, to slow down traffic coming from the west. Fullerton then drove on east past the crest of the hill to the point where the car and trailer were stuck on the shoulder of the road. Fullerton stopped opposite the mired vehicle. With the use of a log chain, he pulled the car and trailer out onto the pavement. Fullerton then had the man whom he had helped out of the mud from the south shoulder drive around him, as well as traffic that had stopped further up the hill, obviously because of warnings given by Steven. When the traffic was all moving, Mr. Fullerton ran partway up the hill and whistled for his son Steven to come down because the traffic was gone. Steven came down the south shoulder of the road and stopped opposite the right door of the Fullerton car. The stipulation includes the statement: "It is disputed by the parties whether Steven was carrying lighted fusees at the time."

The parties further stipulated that Bernard G. Fleetwood was driving a 1958 Triumph automobile owned by Dwane Sauer, also in an easterly direction on U. S. paved Highway No. 30; that Sauer and Fleetwood were members of the United States Air Force stationed at Scribner Air Base, Hooper, Nebraska, and at the time were on a trip from Scribner Air Base to Beulah, Michigan, and that the Triumph automobile "* * * was then driving into and against defendants' 1955 Ford automobile with such force that plaintiff-decedent was killed as a result of said accident — of said impact, and the driver of said 1958 Triumph automobile was injured."

When struck by the Triumph automobile, the Fullerton car was stopped in the eastbound lane of the highway parallel to the center line and the south edge of the concrete slab almost up to the south curb. The stipulation also provided that the point of impact was approximately 500 feet east of the crest of the hill, that the paved portion of the highway at that point was 24 feet in width and that Fleetwood at the time was driving "about 50 to 55 miles per hour". At the time of impact the Fullerton car was in gear and Fullerton had his foot on the brake.

The jury awarded $15,000 for the wrongful death of Dwane Sauer and $1,085 for Fleetwood's personal injuries.

The testimony of the parties presented to the jury subsequent to the reading of the stipulation of facts indicates the usual disagreements, disputes and contrarieties which generally accompany the trial of an accident case. Testimony on behalf of the defendants indicated that Steven Fullerton was given two fusees with which to warn traffic; that he used but one of them; that it was still lit and he carried it with him as he came down toward the Fullerton car in answer to his father's whistle, and that he had it in his hand as he approached the right front door of the Fullerton car and asked his father what to do with it, receiving the direction to throw it into the ditch; that he did so and was just stepping into the car when the collision occurred.

On the other hand, Fleetwood testified that he was driving with his headlights on; that they shone about 450 feet ahead on the highway excepting when cresting a hill; that when he first saw the Fullerton car he believed it was moving, he did not think the taillights were burning; that there were headlights coming toward him from the east; that he saw no light which might have been the light of a fusee; that he did not see a man or a boy walking on the south shoulder of the road carrying a fusee; that he did see the taillights of a car which traveled around the Fullerton car and then proceeded on east; that when he first ascertained that the Fullerton car was not moving, he was within less than 300 feet thereof; that he applied the brakes and the car started to skid on the wet pavement; that he could not turn to the left because of what he determined to be westbound traffic so he let up on the brakes and steered for the south shoulder; that when the front of his car was on the shoulder the rear end swung around in a clockwise fashion, making a full turn, then skidded "broadways" so that the right side of the car he was driving hit the rear of the Fullerton car, resulting in the injuries and death.

At the close of the plaintiffs' case, the defendants filed motions to dismiss which were overruled. At the close of all the evidence, defendants made motions for a directed verdict which were likewise overruled.

Defendants' first contention of error is based upon the court's overruling of its motions. We think the court did not err in refusing to take the cases away from the jury. Viewing the evidence in the light most favorable to the plaintiffs — Nicholson v. City of Des Moines, 1954, 246 Iowa 318, 67 N.W.2d 533, 535; Ahmann v. United Air Lines, Inc., 8 Cir., 1963, 313 F.2d 274 — it is clearly not such that the minds of reasonable men could not disagree. The court could not say that Fleetwood's speed, stipulated to be between 50 and 55 miles per hour, was unreasonable as a matter of law. It was exactly the same speed Fullerton was traveling when he traversed the same portion of the highway a few minutes before. The matters of lookout and care were questions for the jury. Mr. Fullerton himself recognized the danger of leaving a parked vehicle on the main-traveled portion of the highway just east of the crest of the hill. With laudable caution he passed the disabled car rather than stop and assist it at that time. He drove east to a point where he could turn around, then proceeded to a point west of the crest of the hill. He stationed his son just west of the crest of the hill with fusees to warn traffic and he then proceeded to pull the disabled car out of the mud. His caution up to that point was exemplary. It resulted in eastbound traffic being stopped by his son while he commenced the pulling-out operation. After getting the disabled car onto the pavement, he waved it on around him as well as doing the same for the stopped traffic. Why he did not at that time repeat the precautionary measures he had first used by going east to an intersection and then driving back to pick up his son we do not know, but from his failure to do so we think the jurors were entitled to conclude, as they undoubtedly did by their verdicts, that he was guilty of negligence which was a proximate cause of the accident and the death and injuries.

In Mathews v. Beyer, 1963, 254 Iowa 52, 116 N.W.2d 477, 480, the Supreme Court of Iowa said:

"* * * In Chicago & N. W. Ry. Co. v. Chicago, R. I. & P. R. Co. (D.C., N.D.Iowa), 179 F.Supp. 33, 55, Judge Graven says, from a review of our pertinent cases, this court `has in its recent decisions tended to emphasize that questions as to proximate cause * * * and concurrent negligence are peculiarly questions for the trier of facts.\'"

See, also 65 C.J.S. Negligence § 252, p. 1134:

"The questions whether an emergency existed, and whether a person who was confronted with a sudden emergency exercised such care as an ordinarily prudent man would have exercised, when confronted with a like emergency, ordinarily are questions of fact for the jury. The question whether one was without fault in bringing about an emergency generally is for the jury."

We hold that the trial court was entirely correct in overruling defendants' motions and in submitting these cases to the jury.

Defendants' second...