Guyer v. Elger, 15015.

• Decision Date: 31 January 1955
• Docket Number: No. 15015.,15015.
• Citation: 216 F.2d 537
• Parties: Minnie M. GUYER, Appellant, v. Carol E. ELGER, Administratrix of the Estate of George Elger, Deceased; and Carol E. Elger, Administratrix of the Estate of Sylvia E. Elger, Deceased, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

216 F.2d 537 (1954)

Minnie M. GUYER, Appellant, v. Carol E. ELGER, Administratrix of the Estate of George Elger, Deceased; and Carol E. Elger, Administratrix of the Estate of Sylvia E. Elger, Deceased, Appellees.

No. 15015.

United States Court of Appeals Eighth Circuit.

November 9, 1954.

Writ of Certiorari Denied January 31, 1955.

Harry E. Wilmarth, Cedar Rapids, Iowa (Matthew H. Czizek, Robert M. Czizek, Dubuque, Iowa, Caryl W. Garberson, Cedar Rapids, Iowa, Czizek & Czizek, Dubuque, Iowa, and Elliott, Shuttleworth & Ingersoll, Cedar Rapids, Iowa, on the brief), for appellant.

E. Marshall Thomas, Dubuque, Iowa (Edward A. McDermott and O'Connor, Thomas, McDermott & Wright, Dubuque, Iowa, on the brief), for appellees.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

Writ of Certiorari Denied January 31, 1955. See 75 S.Ct. 342.

SANBORN, Circuit Judge.

Minnie M. Guyer, a citizen of Iowa, on February 5, 1953, at about noon, while driving her Cadillac automobile east on Highway 64 toward Maquoketa, Iowa, had a collision with a Ford automobile traveling west and being driven by George Elger, of Chicago, Illinois, who was accompanied by his wife. The cars met head on at a point on the highway about four miles west of Maquoketa. The Elgers were killed. Mrs. Guyer was alone in her car and was the only surviving witness of the accident. She was seriously injured.

The collision was due to one of two causes: either Mrs. Guyer had suddenly turned her car into the north lane of the highway on which the Elger car was traveling west or George Elger had suddenly driven his car into the south lane of the highway on which the Guyer car was traveling east. The paved portion of the highway was 18 feet in width. If each of the cars had remained in its proper lane, no collision could have occurred.

The administratrix of the estates of the Elgers, a citizen of Illinois, brought this action against Mrs. Guyer to recover damages for their deaths upon the claim that Mrs. Guyer had negligently driven her car into the north lane of the highway and caused the accident. Mrs. Guyer denied that she had been negligent, and asserted that George Elger had negligently turned his car into the south lane of the highway, thus causing the collision. She counterclaimed for her damages.

The issues were tried to a jury. At the close of the evidence, the defendant (appellant) moved for a directed verdict in her favor on the ground that the plaintiff (appellee) had not made a case for the jury. The motion was denied, and the jury returned verdicts for the plaintiff, upon which judgment was entered. The defendant moved for judgment notwithstanding the verdicts. Her motions were denied, and she has appealed from the judgment.

The sole question for review is whether, under the applicable law of Iowa, the plaintiff's evidence was sufficient to make the issue of liability one for the jury.

The defendant's testimony was: That she left her home just outside of the village of Nashville, Iowa, approximately half a mile south of Highway 64, at about twenty minutes before noon; that she entered the highway a mile east of the Nashville road; that it was a misty morning and was drizzling; that she had the windshield wipers of her car going; that the highway easterly from the point where she entered it curves through a rock cut; that she proceeded through this cut where the highway straightens out and slopes slightly to the east; that, as she passed through the cut, she observed a car approaching from the opposite direction; that she was driving on the south side of the highway, south of the black line marking its center; that the car approaching her seemed to be traveling at about the same speed as her car, 50 to 55 miles an hour; that each car was on its own side of the highway; that: "He the driver of the approaching car kept coming west and I kept going east, and we continued that way until we were quite close together and then all of a sudden he just like that (indicating) came right over. I mean he would have turned to his left and come at an angle right at me. He was angling from the north to the south side of the road. He was heading southwest. I couldn't tell you in feet how far ahead of me he was when he angled into my lane. I know just how long it took for him when I saw him starting across. I slammed on the brakes and I said, `Oh, Oh, Oh' and he hit me. I remember distinctly saying `Oh' three times, and that is everything that I remember. I don't know whether my car responded to the brakes. I know that I didn't apply the brakes but I slammed them on instinctively, and I don't think that I had time for the brakes to act on the wheel, because it just quivered and outside of that I don't know. There wasn't time to do anything. I was traveling on the south side at that time. I did not see any pool of water any place on the highway that day. Nothing affected my operation of the car. I am not conscious of whether I pulled my car to the left at the time I applied my brakes. I remember slamming on the brakes and saying those three `Oh's' and the car quivered. I slammed on the brakes so hard that it may have pulled it to the right or I may have pulled it to the left, but I am not conscious of it. The brakes were in good condition because I had relined them that summer and they had been set up and readjusted either in October or November."

The evidence on behalf of the plaintiff was necessarily circumstantial. There was virtually no dispute about the position of the cars after the accident. The cars came to rest about 12 feet apart. The Ford was east of the Cadillac and completely off the north edge of the traveled portion of the highway, facing in a northeasterly direction. The Cadillac — much the heavier of the two cars (3,980 pounds as against 3,110 pounds) — was facing slightly west of north, blocking the north lane of the highway. All of the Cadillac except the rear bumper and a small portion of the trunk was north of the middle of the highway. The front end of the Cadillac was on the embankment or north shoulder of the highway.

There was evidence that "Most of the mud and stuff, that was knocked off under the cars, was underneath the Cadillac" and was north of the center line of the highway. There was evidence that it had rained intermittently all morning and was raining at the time of the accident, and that there was a pool of water 2 or 2½ inches deep on the highway, about 30 feet west of the Cadillac; that the pool covered the pavement and extended west about 24 feet. There was no evidence with respect to tire marks on the pavement (possibly due to rain) and no evidence of the existence of any obstruction or condition of the highway east of the point of collision which could or might have caused the driver of the Ford car suddenly to turn his car from the north lane into the south lane of the highway. On the other hand, there was evidence that a short distance west of the point of collision there was the pool of water 2 to 2½ inches deep on the highway, which could or might have caused an eastbound car to swerve from the south lane into the north lane. The disconcerting effect of driving a car at high speed through a pool of water on a highway has been experienced by most motorists. It seems to us that, from a practical point of view, the facts and circumstances disclosed by the evidence, viewed in the light most favorable to the plaintiff, are more consistent with the hypothesis that the driver of the Cadillac suddenly swerved into the north lane of the highway than with the hypothesis that the Ford suddenly veered into the south lane.

Had the Ford, traveling southwest, as the defendant testified, struck the front of the Cadillac in the south lane of the highway, one reasonably might believe that the Cadillac would necessarily have been turned toward the south, and not toward the north, and would have come to rest either in the south lane of the highway or south of that lane off the...