Hartwig v. Olson

• Citation: 261 Iowa 1265,158 N.W.2d 81
• Decision Date: 09 April 1968
• Docket Number: No. 52802,52802
• Parties: Carl HARTWIG, Administrator of the Estate of Perry Hartwig, Deceased, Appellee, v. Clarence OLSON, Appellant, Highway Surfacers, Inc., Defendant on Cross Petition.
• Court: United States State Supreme Court of Iowa

Page 81

158 N.W.2d 81

261 Iowa 1265

Carl HARTWIG, Administrator of the Estate of Perry Hartwig, Deceased, Appellee, v. Clarence OLSON, Appellant Highway Surfacers, Inc., Defendant on Cross Petition.

No. 52802.

Supreme Court of Iowa.

April 9, 1968.

Westfall, Laird, Burington, Bovard & Heiny, Mason City, for appellant.

Miller, Pearson & Gloe, Decorah, for appellee.

MOORE, Justice.

This is an action for the wrongful death of Perry Hartwig, a highway resurfacing employee, struck while working by a car owned and driven by defendant Clarence Olson. Defendant has appealed from judgment on verdict of $28,000 for plaintiff. Defendant assigns nineteen errors, two on rulings on evidence, two on rulings on motions to withdraw portions of pleadings and fifteen on requested and given jury instructions.

Highway Surfacers, Inc., Hartwig's employer, was made defendant on cross-petition. It was granted a continuance and took no part in the trial and is not a party to this appeal. For clarity we will refer to Perry Hartwig as plaintiff and Olson as defendant.

On September 4, 1965 about 6:30 a.m., plaintiff and two fellow employees, Lindsay and Grady Walls, brothers, were operating a cutting machine on the south half of the highway at a place about seven miles north and a half mile east of the town of Thompson in Winnebago County. Defendant approached from the west, struck the machine and the three men. Hartwig was killed instantly and the Walls brothers were seriously injured.

Highway Surfacers, Inc., the employer, had entered into a contract with the Iowa Highway Commission to blacktop approximately nine miles of the county road running east and west. On September 3rd the south half of the blacktop had been completed for some distance east and west of the place of the accident. The north half had been completed from the eastern limit of the job to a few feet west of the place of the accident. About 7:30 that evening the crew ceased working and their equipment was moved to the Bruns farmyard just south of the scene of the accident.

On the morning of the accident plaintiff and his fellow workmen arrived at the Bruns farm about 6 a.m. They were instructed by a foreman to cut a header on the north side and to take a sample from the south lane of the blacktop which had been laid the day before.

Plaintiff drove his employer's 1958 Chevrolet pickup to the north lane a few feet east of where resurfacing of that lane had been completed. The headlights were on. Plaintiff's witnesses testified they were on dim. Defendant testified they were on bright and shining in his eyes as he came from the west.

Plaintiff and the Walls brothers then moved the cutter to a position in front of the parked truck where they cut a header. The cutting machine is an wheels, pushed by workmen and weighs about 300 pounds. Its cutting blade is propelled by a 4 1/2 horsepower gasoline motor. Cutting a header means sawing off the tapered end of the blacktop preparatory to resuming blacktopping. After cutting the header the men moved the machine to the south lane to cut a sample.

As they were cutting the sample, plaintiff was standing on the west side of the machine looking down and controlling the cutting blade. No artificial light was in use. As this was being done one Walls was at the north and the other at the south end of the machine. They and the cutter were hit while in said respective positions.

The morning of the accident was overcast and hazy. Defendant was driving from his home in Buffalo Center to his place of employment at Keister, Minnesota. He did not ordinarily take this road but had done so several times since the blacktopping was started in June. He had driven west over the road the night before and testified no workmen were then on it. He estimated the time as 7 p.m. He observed some strings or directional lines and of course was aware of the resurfacing.

West of the accident scene is a valley with an incline of approximately 11 feet. Defendant was driving between 50 to 60 miles per hour with his bright lights on. He testified he lowered them when he observed the lights of the pickup but those lights remained unchanged. He reduced his speed, looked ahead and slammed on his brakes when he first saw the men and the cutting machine. The skid marks from his Oldsmobile extended 97 feet, 57 feet before the point of impact and 40 feet beyond it.

I. On cross-examination of a witness for plaintiff and by an offer of proof by one of his witnesses, defendant attempted to show there were no signs of any kind warning the public there was construction work ahead, there were no slow or men-working-ahead signs, barricades, lights, reflectors, flagman, flares or warning of any kind of the presence of the cutter of the three workmen.

Defendant's offer of proof by the testimony of a highway patrolman included: 'A. What did you find as to whether or not there were any fusees or reflectors or lights of any kind in that area? A. I found nothing in that area. Q. Did you find any signs in the area warning a motorist to reduce his speed in that immediate area? A. No, I did not. Q. And what about barricades, were there any barricades out there? A. Not that I can recall.'

Plaintiff's objections to each of these and all like questions were: 'plaintiff's decedent was under no duty or obligation imposed upon him by law, by any rules, regulations or statutes with reference thereto, and it is getting into possible negligence, if any, of someone else, and this decedent had no obligation or connection with any signs, any possible negligence by an employer or fellow employee of decedent Hartwig is not imputed or chargeable to him or plaintiff in this action, and the decedent Hartwig was exempt from the provisions of Chapter 321, section 321.233 of the Code; it is incompetent, irrelevant, immaterial.'

The trial court sustained these objections and thus defendant was prevented from showing the surrounding circumstances along the highway just west of the place of the accident. Defendant asserts this consistent ruling of the trial court was prejudicial error. We must agree.

If this evidence went only to imputation of negligence of plaintiff's employer or a co-employee then the trial court's ruling would be correct. Such negligence, if any, would not be imputed to plaintiff. Pappas v. Evans, 242 Iowa 804, 48 N.W.2d 298; Stoker v. Tri City Railway Company, 182 Iowa 1090, 165 N.W. 30, L.R.A.1918F, 515; McBride v. Des Moines City Ry. Co., 134 Iowa 398, 109 N.W. 618; 38 Am.Jur., Negligence, section 235; 65A C.J.S. Negligence § 162.

However, the general surrounding conditions, particularly along the highway immediately west of the place of the accident, were material on the question of defendant's negligence, claimed legal excuse, right to assume and plaintiff's negligence which defendant alleged was a proximate cause of the accident. Plaintiff's specifications of negligence against defendant included allegations he was negligent in driving his car at a greater speed than was reasonable, having due regard to the traffic, surface and width of the highway and the conditions then existing, failing to keep a proper lookout, failing to have his car under control and failing to exercise due care under the existing circumstances and conditions. Such questions and answers as set out above in defendant's offer of proof should have been allowed.

8 Am.Jur.2d, Automobiles and Highway Traffic, section 934, page 482 states: 'In an action growing out of a motor vehicle accident, any evidence of the conditions leading up to and surrounding the accident which will throw light upon the conduct of the parties and the care, or lack of care, exercised by them, is, as a general proposition admissible.' 61 C.J.S. Motor Vehicles § 516 n, page 260, states: 'Ordinarily, evidence of the condition of the road or street, the presence and location of directional or warning signs, signals, making, or devices, and other physical conditions existing at the scene of the accident or collision is admissible.' See also Blashfield Cyclopedia Automobile Law and Practice, section 6174.

Whether a particular speed of a motor vehicle is excessive in violation of Code section 321.285, the reasonable speed statute, depends entirely on the surrounding circumstances. Campbell v. Martin, 257 Iowa 1247, 1252, 136 N.W.2d 508, 511, and citations.

Plaintiff argues defendant's counsel should have stated what he expected to prove and made the materiality of the evidence appear. Perhaps if materiality had been specifically pointed out we would not have the problem now presented under this assigned error. Under the record we are not persuaded counsel was required to do so. The rule is that when it is apparent upon the face of the question what the evidence sought to be introduced is, and that it is material, this is sufficient. But when this is not apparent, then the party seeking to introduce the evidence is required to state what he expects to prove, and thus make its materiality appear. Iowa Power and Light Co. v. Abild Construction Co., 259 Iowa 314, 144 N.W.2d 303, 313 and citations. Here defendant's offer of the questions and answers was sufficient to indicate the materiality of the evidence.

II. On September 4, 1966, exactly one year after the accident, Grady Walls, a photographer, and others went to the place of the accident, parked an automobile where the pickup had been standing and several photographs were taken from the west. One shows a man standing near the south side of the car holding a card on which appears '6.30'. Witnesses, including the photographer, identified this and other photographs taken before, at and after 6:30 a.m. that morning. Each was given thorough cross-examination of all details surrounding the conditions under which these photographs were taken. All agreed it was not overcast on this morning. Grady Walls testified they accurately represented what he saw at the time they...