Harvey v. Borg

• Decision Date: 13 November 1934
• Docket Number: No. 42600.,42600.
• Citation: 257 N.W. 190,218 Iowa 1228
• Parties: HARVEY v. BORG et al.
• Court: Iowa Supreme Court

218 Iowa 1228

257 N.W. 190

HARVEY

v.BORG et al.

No. 42600.

Supreme Court of Iowa.

Nov. 13, 1934.

Appeal from District Court, Polk County; Joseph E. Meyer, Judge.

Action in tort to recover for personal injuries suffered in an automobile collision. Verdict and judgment for the plaintiff, and the defendant appeals.

Affirmed.Putnam, Putnam, Langdon & Fillmore and Hal W. Byers, all of Des Moines, for appellants.

Rippey & Seeburger, of Des Moines, for appellee.

STEVENS, Justice.

Walnut Street and Court Avenue in the city of Des Moines run east and west. East Thirteenth Street Court runs north and south and connects Walnut Street and Court Avenue. The owner of the Chevrolet coupé in which appellee was riding resides a short distance west of the intersection of Thirteenth Street Court with Walnut Street. About 5 p. m., Mrs. Fagen, the owner of the coupé, accompanied by Ruth Harvey, appellee, as her guest, started to drive to the city hall at East First and Locust Streets, some thirteen blocks distant. The car was parked in front of the apartment where Mrs. Fagen lived. They started east, and, as they turned the corner at Thirteenth Street Court to the south, the occupants of the coupé saw a car coming west on Walnut Street some distance away. Appellee was seated by the right side of Mrs. Fagen, who was driving the car, and was a guest or passenger only. As the car proceeded south on Thirteenth Street Court, there was no traffic ahead and no cars parked on the street. The Borg Grocery Store is located at the northeast corner of the intersection of Thirteenth Street Court with Court Avenue. Driving on the right-hand side of the street at a speed of eighteen or twenty miles per hour, Mrs. Fagen and her companion felt something strike their car with considerable force in the rear. Looking back, Mrs. Fagen saw Elmer Borg in the grocery truck behind them. Thus it appears that the street was without traffic, the pavement was dry, and there was nothing to prevent appellant from seeing the car in which appellee was riding. The injuries received by appellee were painful and serious.

After alleging preliminary facts and describing the injuries received by appellee, the petition states: “That in striking and injuring her, as aforesaid, the defendants were negligent and such negligence was the direct and proximate cause of plaintiff's injuries, and at all times plaintiff was free of any negligence on her part contributing thereto.”

A motion to strike the foregoing allegation of the petition was filed by appellant and overruled by the court. This was followed by a motion for more specific statements in which appellee was asked to state the particular acts of negligence of which appellee complained. A resistance of this motion was filed by appellee in which she states that she relies upon res ipsa loquitur and therefore may not be required to state specific acts of negligence. This motion was likewise overruled.

The propositions relied upon by appellant include the overruling of each of the foregoing motions.

[1] At the outset, we are confronted with the question as to whether the res ipsa loquitur rule may properly be applied to the facts of this case. Res ipsa loquitur has been defined and also applied in diverse cases and to a great variety of facts in perhaps all of the states of the Union. It means simply that the facts speak for themselves. To undertake to define its limitations would lead only to confusion and uncertainty. The rule is applied generally when all of the instrumentalities which might cause an injury are under the exclusive control and management of the defendant. Larrabee v. D. M. T. & A. Co., 189 Iowa, 319, 178 N. W. 373;Orr v. D. M. Elec. Light Co., 207 Iowa, 1149, 222 N. W. 560;Crozier v. Hawkeye Stages, 209 Iowa, 313, 228 N. W. 320;Brown v. Des Moines Steam Bottling Works, 174 Iowa, 715, 156 N. W. 829, 1 A. L. R. 835.

In other words, res ipsa loquitur means that facts of a particular occurrence warrant an inference of negligence; that is, that they furnish circumstantial evidence of negligence when direct evidence may be lacking. It is therefore a rule of evidence, and is generally so interpreted. Lynch v. Ninemire Pack. Co., 63 Wash. 423, 115 P. 838, L. R. A. 1917E, 178;Mayes v. K. C. Power & Light Co., 121 Kan. 648, 249 P. 599;Christensen v. Oregon Short Line R. Co., 35 Utah, 137, 99 P. 676, 20 L. R. A. (N. S.) 255, 18 Ann. Cas. 1159. As bearing upon the definition and application of the rule to a great variety of facts and circumstances, we call attention to the following from other jurisdictions. Monkhouse v. Johns (La. App.) 142 So. 347;Waddle v. Sutherland, 156 Miss. 540, 126 So. 201;Walker v. Benz Kid Co., 279 Mass. 533, 181 N. E. 799;Lewis v. Casenburg, 157 Tenn. 187, 7 S.W.(2d) 808, 60 A. L. R. 254;Moore v. Steen, 102 Cal. App. 723, 283 P. 833;Cooper v. Agee, 222 Ala. 334, 132 So. 173;Garfinkel v. Nugent & Bro. Dry Goods Co. (Mo. App.) 25 S.W.(2d) 122;Stephens v. Kitchen Lumber Co., 222 Ky. 736, 2 S.W. (2d) 374;Hammond v. Hammond, 134 Misc. 534, 236 N. Y. S. 100;Arkansas P. & L. Co. v. Beauchamp, 184 Ark. 698, 43 S.W.(2d) 234;Wilson v. Colonial Air Transport, 278 Mass. 420, 180 N. E. 212, 83 A. L. R. 329;Kentucky Utilities Co. v. Sutton's Adm'r, 237 Ky. 772, 36 S.W.(2d) 380;Delaware Dredging Co. v. Graham (D. C. Pa.) 43 F.(2d) 852;Galveston, H. & S. A. Ry. Co. v. Tullis (Tex. Civ. App.) 8 S.W.(2d) 247;Union Gas & Electric Co. v. Waldsmith, 31 Ohio App. 118, 166 N. E. 588;Johnson v. Herring, 89 Mont. 420, 300 P. 535.

It will be observed that the opportunity of knowing the facts of this case was not open to appellee or the driver of the car in which she was riding. They were looking ahead and proceeding at a low rate of speed. The truck driven by Elmer Borg approached from the rear in plain view of the automobile upon a wide public street without obstruction or anything whatever to impede or interfere with the proper operation thereof. Some courts use the word “presumption” instead of “inference.” Whether one or the other be used, it is clear in the present instance that what occurred was so out of the ordinary and of such a character as not reasonably to be anticipated or likely to happen as to lead to but one inference, and that is that the truck was operated in a negligent manner. A case quite in point is Washburn v. R. F. Owens Co., 252 Mass. 47, 147 N. E. 564, 566. The Supreme Judicial Court of Massachusetts in that case said: “Where however, as here, the uncontradicted evidence shows a broad, smooth highway with only a wagon at the extreme right and one, possibly two, trucks moving at a reasonable speed behind it, with the road open and free from vehicles for a long distance in front; and further shows that a truck struck the wagon from behind; the evidence certainly justifies, though it may not require, a conclusion that some one was negligent. Vincent v. Norton & Taunton Street Railway Co., 180 Mass. 104, 61 N. E. 822. It presents a situation where an explanation is due, if something other than negligence is the cause of the happening; and it relieves the plaintiff from showing the particular act of carelessness. McNicholas v. New England Tel. & Tel. Co., 196 Mass. 138, 81 N. E. 889.”

See, also, Overstreet v. Ober, 14 La. App. 633, 130 So. 648;Gornstein v. Priver, 64 Cal. App. 249, 221 P. 396.

Some reliance is placed by appellant upon Reardon v. Boston El. Co., 247 Mass. 124, 141 N. E. 857, which it is claimed is inconsistent with the later decision of the same court. The distinction lies in the facts, and would seem to be obvious. The instrumentalities involved in this case were, on the part of appellant, under his exclusive control and, ordinarily,such care and control is exercised over such instrumentalities as to prevent occurrences such as the one described in this case. The collision was from the rear, and appellee had no means of knowing the particular facts constituting the negligence.

[2][3][4][5] The contention of appellant that the maxim may never be applied to moving vehicles cannot be accepted. We deem it quite unnecessary to review or discuss the great number and variety of cases cited by counsel for appellant. An examination of them, so far as the decisions of this court are concerned, discloses no conflict in either the...