Glover v. Vernon
| Decision Date | 09 May 1939 |
| Docket Number | 44579. |
| Citation | 285 N.W. 652,226 Iowa 1089 |
| Parties | GLOVER v. VERNON et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Jones County; F. O. Ellison, Judge.
Action at law to recover damages due to alleged negligence in the operation of a truck upon a public highway. Verdict for plaintiff. Judgment on the verdict. Defendants appeal.
Affirmed.
Ordinarily contributory negligence is jury question.
Hallagan, Fountain, Stewart & Cless, of Des Moines, and James E. Remley, of Anamosa, for appellants.
Havner, Flick & Powers, of Des Moines, and J. C. France, of Tipton, for appellee.
The accident, which resulted in the death of Charles Lee Glover, plaintiff's intestate, occurred a little over one-half mile west of Mechanicsville, Iowa, on highway No. 30. The paved portion of the road is 18 feet in width with two black lines in the center, having solid dirt shoulders, which were sodded with blue grass, approximately 6 feet wide on each side of the pavement. For a considerable distance each way from the scene of the accident, the pavement is practically level and there were no vehicles on the highway and nothing to obstruct the vision of the operators of the two trucks involved in the accident. The pavement was dry and it was 10 a. m. of a bright, sunny day. Both trucks were proceeding westward. The truck in the rear, which we will refer to as defendants' truck, was owned by defendant Vernon and was being driven by defendant Simmons, with the owner's consent. The other truck, owned and operated by plaintiff's intestate, was a Nash car made into a truck with a homemade bed or rack. It had no cab, the back of the driver's seat being against the rack. Defendants' truck was licensed to haul a maximum load of 10,000 pounds. On the morning in question, Simmons had picked up nine head of cattle, weighing approximately 1,000 pounds each, at a farm east of the town of Olin to be transported to Cedar Rapids, Iowa. He proceeded south from Olin to highway No. 30 and thence west. As he reached Mechanicsville, the truck driven by the deceased drove out of a side road onto highway No. 30 and turned west ahead of defendant and the two trucks proceeded west from Mechanicsville. When defendants' truck passed Park's garage, located about one-half mile west of Mechanicsville, the distance between the trucks was in the neighborhood of 100 to 200 feet. At the same time, Earl Green was hitchhiking to Cedar Rapids and was walking along on the north edge of the pavement going in the same direction as these trucks and was the only eye-witness to the accident other than Simmons. He heard the trucks coming behind him and stopped and turned around and was watching them. At this time, Glover's truck was about 40 feet from him and the defendants' truck about 75 to 90 feet behind the Glover truck. He stood and watched until Glover's truck was within 20 to 30 feet of him at which time he stepped out on the shoulder about 3 feet. The collision occurred about 6 feet west of where he stood. As the Glover truck approached Green, it slowed down and pulled to the left over the black lines. About the same time, defendants' truck undertook to pass Glover and in doing so the right front corner of the rack of defendants' truck caught the left rear corner of the rack of Glover's truck, shoved some of the timbers forward forcing Glover's body against the steering wheel and one of the boards through the windshield. The Glover truck proceeded on in a northwesterly direction off of the pavement into the ditch where it came to a stop about 60 feet west of the point of collision; defendants' truck proceeded on west and was driven out onto the north shoulder and parked about 200 feet west of accident. Glover's body was limp, his head hanging over toward the running board. A doctor was summoned who administered first aid treatment. Later an ambulance arrived and the doctor accompanied the body to a hospital in Cedar Rapids. The doctor was of the opinion that Glover regained consciousness sufficiently to recognize his wife before he died but the record is barren of any statement made by him. At the close of the plaintiff's evidence, defendants jointly and severally moved for a directed verdict and this was renewed at the close of all the evidence, defendants contending then and still contending that there was not sufficient evidence of negligence as to any of the alleged grounds to take the case to the jury and also contending that the evidence showed, as a matter of law, contributory negligence on the part of Glover.
We have examined the authorities cited in the briefs and have read the entire record as contained in the transcript and have endeavored to weigh and interpret the evidence dispassionately and carefully, fully realizing that the record presents some close questions. However, when stripped of the words put into the mouths of the witnesses by counsel and when the testimony as voluntarily related is given the interpretation which the witnesses intended, unassisted by what we will call legitimate suggestion, the record presents a fairly simple situation and the jury was warranted in finding, as it no doubt did find, that this accident came about because of the failure of Simmons to exercise that reasonable care and caution which an ordinarily prudent person would have exercised under the circumstances. Here was Green, who was crippled in such a way that he was required to sort of drag his right foot as he walked, walking down this pavement in broad daylight. As the cars approached, he heard them, turned around facing them. The car in front heeded the admonition of the legislature (Code, Section 5031) to have his car under control and reduce the speed to a reasonable and proper rate when approaching and passing a person walking in the traveled portion of the public highway, slowed down and pulled to the left over the black lines; while Glover's truck was in this position, the Simmons' truck, failing to take notice of what the jury could have found an ordinarily prudent person would have done, did not reduce his speed correspondingly until Glover's car could again return to the right of the black lines; and failing to take note of such situation, as the Glover car slowed down, the Simmons' truck, because of the speed he was going or more correctly speaking because of his failure to reduce his speed could not stop, was compelled to pass Glover's truck at a point where Glover was, under the statute, required to be in passing Green and, in attempting to pass Glover, the speed of defendants' truck was such that he was unable to negotiate it successfully. When the deputy sheriff, who arrived on the scene very shortly after the accident, inquired of Simmons why he did not stop, Simmons replied, Throughout the entire argument on the part of the appellants, great stress is laid upon the fact, as appellants contend, that Glover slowed down " suddenly" . An examination of the transcript of the evidence touching this point plainly reveals an instance of what we heretofore referred to as " legitimate suggestion" on the part of counsel. There was plenty of this sort of thing indulged in by counsel on both sides. In other words, this word was put in the mouth of the witness by astute counsel who very carefully, later on in the examination, had the witness confirm the statement originally made by counsel. On this point let us review the evidence of Mr. Green. He made a written statement soon after the accident wherein he said:
On the witness stand, as a witness for plaintiff, he testified on cross examination as follows:
" Q. The Glover truck slowed down, didn't it? A. Yes, sir.
Q. Slowed down quite suddenly there and pulled over the black line? A. Well, it pulled over the black line, I suppose that was because I was standing there at the time.
Q. Were you trying to get a ride? A. Well, I was not trying to from them fellows, I just stood there watching the trucks as they approached. * * *
Q. Well now, the Glover truck as it came up towards where you were, slowed down? A. Yes, sir.
Q. Now, before that, the cattle truck, we will say the Vernon truck, had started to pass it, hadn't it? A. Not at the time.
Q. Well, when did it start to pass? A. Well, after Mr. Glover had pulled over about six inches over the black line.
Q. And you heard the horn? A. Yes, sir.
Q. Did the horn sound on the Vernon truck before the Vernon truck swung out to the left? A. It was already out to the left.
Q. Well now, Mr. Green, the Vernon truck went on to the south shoulder, didn't it? A. Well, I think that the rear wheels were off, I am pretty sure they were. * *
Q. Mr. Green, as you stood there looking at this, what you mean to tell these jurors here is that this accident happened about five or six feet beyond you, that is west of you? A. Yes, sir.
Q. That just before the accident, Mr. Glover suddenly slowed his truck down, didn't he? A. Yes, sir.
Q. Your answer is yes? A. Yes.
Q. And when he did that, he swerved his truck to the left across the black line, didn't he? A. That was before he got to me.
Q. That was before he got to you? A. It was.
Q. That was why he was slowing down? A. Yes, and I stepped off the paving."
On re-direct examination, Green testified further that, when he first stopped on the paving and turned around, the Vernon truck was traveling about 30 or 35 miles an hour and the Glover truck " about 20 as it began slowing up" and that at the time he actually stepped off of the paving the Glover truck was about 20 to 30 feet east of...
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