Hackman v. Beckwith

• Decision Date: 04 May 1954
• Docket Number: No. 48484,48484
• Citation: 245 Iowa 791,64 N.W.2d 275
• Parties: HACKMAN v. BECKWITH et al.
• Court: Iowa Supreme Court

Page 275

64 N.W.2d 275

245 Iowa 791

HACKMAN v. BECKWITH et al.

No. 48484.

Supreme Court of Iowa.

May 4, 1954.

Donohue & Wilkins, New Hampton, for appellants.

Zastrow, Noah & Smith, Charles City, for appellee.

THOMPSON, Justice.

On November 20, 1952, plaintiff's decedent, Clem Hackman, was employed as a truck driver by the Diamond Transportation System, Inc. He was forty-five years of age, in good health, and had a life expectancy of 25.21 years. In the late afternoon of the date in question he drove a semi-trailer outfit belonging to his employer, loaded with four farm tractors, eastward from Charles City on Highway No. 18. The truck and tractor combined weighed about 37,000 pounds, and were about 45 feet in length. About eight miles east of Charles City the highway crosses the tracks of the Milwaukee railroad on a viaduct. On this viaduct he met a ton and one-half Chevrolet truck, loaded with beer cases and containers and perhaps some other merchandise, owned by the defendant Capital Tobacco Corporation and driven by the defendant Donald Beckwith. This truck was proceeding west. It was twenty feet long, and weighed, empty, about 12,000 pounds. It had a heavy box, eight by twelve, and seven feet high, built on the rear of the chassis for the purpose of containing the merchandise being transported.

A collision occurred on the viaduct between the two trucks, resulting in serious injuries to plaintiff's decedent from which he died nine days later without regaining consciousness. This action was brought by the administratrix of his estate. Other facts, many of which are quite material, will be set out in the various divisions of the opinion as they become pertinent.

I. Defendants-appellants' first assignment of error raises the proposition that the court was in error in refusing to direct a verdict for them at the close of all the testimony and in denying their motion for judgment notwithstanding the verdict. The only direct evidence in the case was furnished by the driver of appellant's truck, Donald Beckwith. Each driver was alone in his vehicle at the time of the collision. No other witness claims to have seen the actual collision, and the court told the jury in its instructions that appellee relied upon circumstantial evidence. This means her case must be supported by evidence such as to make her theory of causation reasonably probable, not merely possible, and more probable than any other hypothesis based on such evidence. Smith v. Darling & Co., Iowa, 56 N.W.2d 47, 49, and cases cited. But this means only the evidence must be such as to raise a jury question within the limits of the foregoing rule; it need not be conclusive. Smith v. Darling & Co., supra. It is of course so well established as to require no citation of authority that we must accept the evidence in its construction most favorable to the plaintiff. Ordinarily, disputed questions of fact from which reasonable minds might draw varying conclusions are for the determination of the jury. Roller v. Independent Silo Co., 242 Iowa 1277, 1282, 49 N.W.2d 838.

It therefore becomes important to consider the evidence in more detail. The viaduct upon which the collision occurred is twenty-four feet wide, with a sixteen inch curb on each side, restricting the actual width available for vehicles to twenty-one feet and four inches. The Diamond truck came to rest after the collision in about the center of the viaduct east and west, with all of its wheels on the right-hand side against the south curb. This means it was as far to the right of its right-hand side of the road as it was possible for it to get. The appellants' truck was about 112 feet farther to the west, just off the west end of the viaduct, slanting diagonally to the northwest across the highway with its left rear wheels on or slightly across the center line of the highway and its front end on the shoulder on its right-hand side. Further facts shown in evidence which were either disputed or not conceded by the appellants were that there was a series of scuff marks along the south curb immediately at the rear of the Diamond truck, extending back some fifty-six feet, from which the deduction might properly be made that the truck had been driven so close to the curb on its right-hand side as to rub against it. The tires on its right-hand side also showed abrasions. The rear wheels of the tractor on this combination were torn entirely loose from the vehicle, being driven back under the tank. The front end of the tractor was down on the pavement. It is urged from this the truck, weighing as it did some 37,000 pounds, could have moved only a slight distance after the crash, and that the probabilities are strong it could not have been across the center line at the time of the collision and then been moved back to its resting place with its entire length of 45 feet snug against the curb on its right-hand side.

Certain marks were also testified to by plaintiff's witness Ingram. This evidence showed that they ran from a point on the south side of the roadway, and somewhat east of the final resting place of the Diamond truck, to the rear wheels of the defendants' truck. The collision occurred about 5:15 p. m., and at that time of the year dusk was falling. While the weather was clear, the evidence shows there was some moisture on the pavement, caused by frost or dew, and in this moisture the witness Ingram testified he saw the tracks leading from a point which would have been on appellants' left-hand side to the rear wheels of their truck as it finally rested at the west end of the viaduct.

These tire tracks, the respective weights of the two trucks, the fact that the outfit driven by the plaintiff's decedent was a combined unit, which would make it most difficult to drive both the tractor and trailer to the right after the collision, so that they would end in a straight line against the curb, and the nature of the damage sustained by the respective vehicles we think clearly made a jury question, both upon the issues of defendants' negligence and of plaintiff's contributory negligence. It was not necessary for appellee to negative every possible theory or conceivable hypothesis which might be devised to account for decedent's injury. Hayes v. Stunkard, 233 Iowa 582, 587, 588, 10 N.W.2d 19, and cases cited. The appellants argue ably and ingeniously that the distances shown, the place of the debris upon the pavement immediately after the accident, and many other details negative appellee's showing to the point where it vanishes, and a peremptory verdict should have been returned for them. As to the debris, we note the testimony of Sheriff K. J. Daly, who said that before some of the pictures, showing most of the debris from appellant's truck on its right-hand or the north side of the road, were taken, the south side had been cleaned off so that traffic might move through. When he first observed the scene, before anything in the way of refuse had been moved, it was strung along the way from the rear of the Diamond truck to the rear of the Capital Tobacco truck; about as much on one side as on the other. This seems to strengthen, rather than to weaken appellee's case. Practically all the debris came from appellants' truck, which some evidence shows careened on down the road from the point of collision to its final resting place. In any event, the deductions to be made from the positions of the vehicles as they come to rest after an accident, the tracks found on the roadway, and the location of dirt and debris from collisions, are ordinarily for the jury. Slabaugh v. Eldon Miller, Inc., Iowa, 55 N.W.2d 528. The appellants have furnished us with a quotation from Shafer v. State, 171 Md. 506, 189 A. 273, 274, which we think appropriate here: 'Reliance upon such evidence (marks on the highway) alone for jurisdictional determination of movements leading to a collision * * * is beset with dangers, but there would seem to be no room for doubt that in some cases it might amount to proof of negligence.' We think this is such a case; particularly when there is much other substantial evidence pointing in the same direction. We stress the word 'might' in the foregoing quotation;whether it does amount to such proof is for the jury to say; we hold no more than that.

II. Appellants' next complaint is of the action of the trial court in instructing on the no eye-witness rule. It is contended that the evidence did not warrant an application of the rule, and further that the instruction was erroneous as a matter of law even if the rule was properly in the case.

The only possible eye-witness to the accident and the events immediately preceding it was the defendant driver, Donald Beckwith. The substance of his testimony is this: 'I come on around and made my swing and as I was over the viaduct I looked and here was a tractor coming and I swerved to the right. There was one impact and it just seemed like a second and there was a second one and I don't know what happened. * * * It appeared to me like he was over the black line and I made a swerve to try to avoid the collision.'

This evidence was not sufficient to remove the no eye-witness rule from the case. The court properly submitted the matter to the jury to find whether there was in fact an eye-witness. The facts shown by Beckwith's testimony are no stronger, if as strong, in favor of appellants' contention that there was no occasion for the application of the rule than were those in Hayes v. Stunkard, supra; Davidson v. Vast, 233 Iowa 534, 10 N.W.2d 12; and Riedesel v. Koch, 241 Iowa 1313, 45 N.W.2d 225. In each of these cases we held the question--whether there was an eye-witness--was properly submitted to the jury. It is evident in the case at bar Beckwith did not see, or at least did not so testify he saw, the decedent at all times material. His observation was a most fleeting one, and was confined to the position of the vehicle driven by plaintiff...