Hahn v. Graham
| Decision Date | 09 June 1964 |
| Docket Number | No. 51351,51351 |
| Parties | Vivian HAHN, Minor by next of friend and mother, Sylvia Hahn, Appellant, v. Jimmie J. GRAHAM, Appellee. |
| Court | Iowa Supreme Court |
Messer & Cahill, and Jerry L. Lovelace, Iowa City, for appellant.
D. C. Nolan, Iowa City, for appellee.
On February 11, 1959, Vivian Hahn, then eight years of age, was seriously injured in a collision between an automobile driven by her brother, William T. Hahn, and a truck equipped with a snow plow, owned by Johnson County and being operated by the defendant. The accident occurred in daylight, about 8 a. m., on a county road in Johnson County. Both vehicles were traveling east, with the truck in advance and engaged in snow removal from the highway. Just west of a bridge on the highway the automobile collided with the rear of the truck, resulting in the death of the driver, serious injuries to Anna Marie Hahn, an older sister, and still more serious injury to Vivian. Although the action is brought by her mother as her next friend, Vivian Hahn will be referred to hereafter as the plaintiff.
Plaintiff's petition alleged certain specific negligences against the defendant, which it is not necessary to detail here. The defendant denied any negligence on his part. The real fighting point in the case is whether the accident was caused solely by the negligence of the driver of the car in which the plaintiff was riding. A collision of this sort does not often happen without negligence on the part of someone. Of course it is possible that both drivers were negligent; we shall discuss this feature of the case later. We shall also state facts relevant to errors assigned as we reach them.
The plaintiff assigns five errors. The first four deal with the court's submission of issues concerning, respectively, the condition of the brakes on the Hahn car at the time of the accident, of the speed of the car, control and lookout, and error in an instruction which told the jury the plaintiff could recover if she had proven the negligence of the defendant was the sole proximate cause of the collision. The fifth assignment asserts error in denying plaintiff's motion for a new trial because of erroneous and confusing instructions, and generally that she did not have a fair trial and justice was not accorded her. We shall discuss these in order.
It was plaintiff's contention, and her evidence tended to show, that as the truck reached the west end of the bridge, it pulled from its right hand side of the roadway to the center, and stopped. The highway was icy and slippery. The defendant testified that he did not pull to the left more than four to six inches, as the road narrowed slightly as it entered the bridge; and he denied stopping. His truck, after the collision, crossed the bridge and stopped a few feet east of it. It is his theory of the case that the accident was caused by the negligence of the driver of the car in which the plaintiff was riding, in that the car was equipped with faulty brakes, that it was traveling at an excessive speed under the prevailing circumstances, was not under proper control, and the driver failed to keep a sufficient lookout. Instruction No. 16 of the court submitted these contentions for the jury's determination. The plaintiff contends there was insufficient evidence of any of them to permit such submission; and also raised the questions by objections to the defendant's evidence.
I. In connection with the claimed inadequacy of the brakes on the Hahn car, the defendant introduced, over the objection of the plaintiff that it was 'incompetent, irrelevant and immaterial and no proper foundation having been laid', the testimony of Lawrence Crock, an automobile mechanic of many years experience in repairing damaged automobiles and appraising damage to them, and with two years training in trade schools on mechanical work in the United States Navy. His qualifications were ample.
The defendant urges that the objection was not specific enough to call the court's attention to the real ground now claimed, which is chiefly that the inspection of the damaged car and its brakes was not closely enough related to the time of the accident to furnish any ground for a finding that the brakes were defective when the collision occurred. The inspection was made by the witness on April 2, 1959, forty days after the accident, and when the car had been moved to a salvage lot in Coralville, some miles from the place of the collision. It is doubtful whether the objection did in fact acquaint the court with the claimed weakness in the testimony. In Jettre v. Healy, 245 Iowa 294, 299, 60 N.W.2d 541, 544, we said '* * * specific objections cannot be urged under the general objection that evidence is
But whether or not the objection here was sufficiently specific, we think the evidence was properly admitted, with its weight being for the jury to decide. The expert witness said that the brakes had not been damaged in the collision; that their condition was not caused by the accident. But much of the brake fluid had seeped out, so that the first application of the brakes would have no effect; the brake pedal would go 'clear to the floor'. After pumping the pedal three or four times, there would be some braking effect. There was fluid in the master cylinder, 'not very much, something like between a quarter and a half inch'. There was black sediment in this fluid, which didn't belong there, and this would very easily clog the outlet and plug it and there would be no brakes.
Mr. Crock said the condition of the brakes he found had existed for some time, and was definitely not brought about by the collision in any way. It might be concluded that it existed at the time of the accident; or that, although not caused by the collision, the fluid had leaked during the period following it. We think this question, together with that of the foreign sediment found in the master cylinder, was properly submitted to the jury and the court's instruction on the question of defective brakes was in order. The plaintiff urges that because of the condition of the highway, the adequacy of the brakes was immaterial. The contention seems to be that brakes, good or bad, would have no effect on a slippery road, covered with ice-like packed snow. Again we think this was for the jury to say. We are not convinced that good brakes may not be found to be better than defective ones, even on a treacherous icy highway.
II. Error is assigned on the admission of evidence of speed of the Hahn car, and in submitting the question to the jury as the court did in instruction 16. Section 321.285, Code of 1962, I.C.A., is the general speed restriction statute. It provides: 'Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead, such driver having the right to assume, however, that all persons using said highway will observe the law.'
Ronald Cuppy, aged 19, who lived, as he said, about three-quarters of a mile from the scene of the accident, was driving out of the farm lane leading to his home on the morning of the accident. He testified that he looked in both directions--east and west--before entering the highway. He could see about 400 feet to the west as he drove onto the highway, and there was nothing in sight then. After he had gotten on the highway, which was snow packed and icy with clear spots, he saw the Hahn car coming down the hill toward him; his car sputtered, and he saw the oncoming car 'coming down that close.' He said the Hahn car was 'going fast'. Objection was made to this testimony; and it is now urged that the distance was too remote, and the statement that the Hahn car was 'going fast' was inadmissible and did not tend to establish any excessive speed.
Anna Marie Smith, the former Anna Marie Hahn, testified that she was riding in the right front seat of the car with her brother, who was driving, with the plaintiff in the middle. She said they saw the Cuppy car 'about a quarter of a mile before the accident'. There is thus some difference in the evidence as to distance from the accident at which ...
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