Glass v. Hutchinson Ice Cream Co.

• Decision Date: 24 June 1932
• Docket Number: No. 41187.,41187.
• Citation: 214 Iowa 825,243 N.W. 352
• Parties: GLASS v. HUTCHINSON ICE CREAM CO. ET AL.
• Court: Iowa Supreme Court

214 Iowa 825

243 N.W. 352

GLASS

v.HUTCHINSON ICE CREAM CO. ET AL.

No. 41187.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Dallas County; E. W. Dingwell, Judge.

Action for damages for personal injuries sustained in an automobile collision upon the highway. The collision occurred on a graveled road about 9 p. m. on May 3, 1930. Three cars were involved in the collision. Two of these were moving east, one behind the other, and the other car was moving west. The plaintiff was an occupant of the latter car. This car collided with each of the other cars in succession and the plaintiff was severely injured as a result of the collision. One of the east-bound cars was owned by the defendant Hutchinson Ice Cream Company and driven by the defendant Foster. The other east-bound car was owned and operated by Floyd and Lloyd Pierce, brothers. The verdict of the jury was for the defendants, and judgment was entered thereon. The plaintiff has appealed.

Affirmed.Stipp, Perry, Bannister & Starzinger and E. B. Carpenter, all of Des Moines, for appellant.

Harry Wifvat, of Perry, Parrish, Cohen, Guthrie & Watters, and J. L. Parrish, Jr., all of Des Moines, for appellees.

EVANS, J.

The appeal is presented by the appellant upon 28 assignments of error, most of which relate to rulings on the admission of testimony. These assignments are fairly divisible into groups, and we shall so consider them. Before proceeding to such consideration, it seems advisable that we first state the main features of the case so far as they are undisputed in the evidence. Three cars were involved in the accident. These are referred to in the record both by the name of the car and by the name of the owner. The plaintiff was riding in a Dodge car, owned and driven by Alborn, and traveling west. A Ford coupé owned and driven by Floyd and Lloyd Pierce was traveling east upon the same road. At some distance behind the Ford coupé was a Ford truck owned by the defendant Hutchinson Ice Cream Company and driven by the defendant Foster, and also traveling east. The Ford truck was occupied by Foster and his wife; the Ford coupé was occupied by the brothers Pierce; and the Dodge sedan was occupied by seven boys, four in the rear seat and three in the front. The towns of Jamaica, Dawson, and Perry figure in the evidence. Jamaica lies six miles west of Dawson; and Perry lies approximately the same distance east of Dawson. These towns are connected by a wide graveled road upon which the accident occurred. The Dodge car was traveling from Perry toward Dawson, and the other two cars from Dawson toward Perry. The accident happened about a mile and a quarter or a mile and a half easterly from Dawson. The accident involved two collisions in close succession. The Ford coupé occupied by the Pierces first collided with the Dodge. That collision is described as a sideswipe. Each of those cars was apparently traveling with its left wheel upon the center of the road. The “swipe” resulted in crushing the south side running board and the rear fender of the Dodge. The impact of the collision upon the rear end of the Dodge turned the course of the Dodge car so that it was headed southwesterly. It so proceeded over the south half of the highway and directly in front of the on-coming truck of the defendant. The truck was on its proper side of the road. The driver was unable to avoid the collision, and the front end of the truck struck broadside the right side of the Dodge car. The plaintiff's witness Lloyd Pierce described the initial collision as follows: “Just before the accident, we were going right at 35 miles an hour. We side-swiped this Dodge car. After we side-swiped it, it jerked the wheel out of my brother's hand, and whipped across the road a couple of times, and turned completely around headed west on the north side of the road and tipped over in the ditch. * * * I do not know which car at the time of the side-swiping was over at the center of the road. I do not know whether it was our car that was over too far north or the Dodge that was too far south.”

Plaintiff's witness, Alborn, driver of the Dodge car, described the collision as follows: “The Ford coupé that side-swiped us hit the south side of the car as we were going west. That caused the Ford coupé to switch over to the north side of the road. In about two seconds the Ford truck hit our car. Right after the Dodge and Ford had sideswiped, my car went to the south side of the road headed in a southwesterly direction, and the defendant's truck was headed in an easterly direction. The front end of the truck was against the right doors of our sedan.”

It will be noted from the foregoing that the collision of the Dodge car with the truck of the defendant was the result of the preceding collision with the Ford coupé. So far as the immediate circumstances of the accident are concerned, there was no evidence of negligence or fault on the part of the driver of the Ford truck. The theory of the plaintiff was that the defendant's truck was responsible for the collision because of the wrongful conduct of its driver in engaging in a race upon the highway with the Ford coupé driven by the Pierces. It is conceded, as a matter of law, by the defendant, that if its truck was engaged in a race upon the highway with another automobile and that a collision occurred as a result of the pressure or excitement of such race, then both parties to the race would be liable for the resulting collision. It was upon this theory that the plaintiff sought to show that such a race was “on” between the two east-bound cars at the time the collision resulted. The larger number of assignments of error are predicated upon rulings of the court in the admission of evidence to that end. It was made to appear that at Jamaica the defendant's truck waited at a railway crossing for the passing of a freight train; that at the time the freight train cleared the crossing the Pierce brothers passed the truck while it was still standing at the crossing and proceeded on the road; that a short time thereafter the truck passed the Ford coupé; that a half a mile further on the coupé passed the truck. From that point on the vehicles proceeded eastward without further passing of each other. The defendant moved to strike this evidence as being too remote, and the court sustained the motion. Other evidence was offered of the apparent speed of the vehicles at other stages of the road, and this evidence also was rejected as remote. It appears that the road in question was a wide graveled road. It extends easterly from Dawson for nearly one-half mile to a right angle corner where it turns north. About one-quarter of a mile north of such corner is another right angle corner where the road turns east. The collision occurred about one-half mile east of such second corner. It seems to have been taken for granted by both sides that these corners were not conducive to racing. In rejecting testimony as too remote, the court ruled that the plaintiff would be permitted to introduce evidence tending to show racing at any point between the first corner and the place of the accident, an approximate distance of three-quarters of a mile. In the final submission of the case, the court ruled that the plaintiff had introduced no evidence of any racing within the range allotted to him, and so instructed the jury. The appellant assigns error upon such ruling, as well as upon the rulings of the court which excluded evidence on the ground of remoteness.

[1][2][3] It is manifestly true that evidence of speeding and racing between two cars upon the road may be so remote in time and distance as not to be admissible in evidence. Whether it be such in a given case must of necessity rest in the sound discretion of the trial court. Such is the universal holding of the cases cited in the briefs. If there had been evidence of such racing or speeding immediately before the accident and within the space of three-quarters of a mile, as ruled by the court, then such court might properly extend the range of the evidence to a longer time and distance for the purpose of corroboration. Manifestly the court might properly say in its discretion that remote evidence will not be first received, nor received at all, unless there be evidence of such racing immediately preceding the accident. If the court was correct in holding that no evidence had been introduced of racing at any point between the place of the accident and the first corner east of Dawson, then manifestly evidence of racing preceding such time and place could not be corroborative of anything. We proceed first, therefore, to examine the evidence relied on by the plaintiff of racing immediately preceding the accident and within the ruling of the court. Plaintiff's reliance is upon certain evidence of his witness, Lloyd Pierce. This witness testified in the first instance that his brother was driving the car, and that he himself looked from time to time to ascertain the location of the truck behind them. This watchfulness on the part of this witness is relied on by the plaintiff as indicating a race...