Harvey v. Knowles Storage & Moving Co.
| Decision Date | 19 October 1932 |
| Docket Number | No. 41596.,41596. |
| Citation | 215 Iowa 35,244 N.W. 660 |
| Court | Iowa Supreme Court |
| Parties | HARVEY v. KNOWLES STORAGE & MOVING CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Union County; Homer A. Fuller, Judge.
Action in which the plaintiff seeks to recover for personal injury, and also damages to the car, which were sustained in an automobile wreck. Trial to the court and a jury. Directed verdict and judgment thereon in favor of the defendant. Plaintiff appeals.
Affirmed.
Higbee & McEniry, of Creston, for appellant.
Crofoot, Fraser, Connolly & Stryker, of Omaha, Neb., for appellee.
[1] In this action the plaintiff seeks to recover damages to person and property for alleged negligence by the defendant-corporation, through its servants, relative to a truck, which, at the time in question, was standing next to the curb on the right-hand side of the pavement on Federal Highway No. 34, near Corning. At the close of all the evidence, the court sustained a motion for directed verdict in favor of the defendant. Said motion presents the questions as to whether the evidence is sufficient to warrant a verdict in plaintiff's favor upon the alleged grounds of negligence; whether said negligence, if any, was the proximate cause of the injury to plaintiff and the car; and whether the plaintiff was not guilty of contributory negligence. The burden is upon the plaintiff to establish that the defendant was negligent, as alleged, and that said negligence, if any, was the proximate cause of the injury, and that he, himself, was free from contributory negligence.
In count 1 of the petition, the plaintiff alleges, in substance, that he was forced off the paved highway west of the city of Corning, on Highway No. 34, after dark, about 7 p. m. on February 17, 1931; that, on the night in question, the defendant and its agents parked a truck on the pavement without lights; and that the plaintiff, while proceeding on said highway, and while the paving was blocked by said truck, in the exercise of due caution, being unable to stop, attempted to pass on the dirt shoulder, and, in so doing, the shoulder gave way and plaintiff's car was overturned in the ditch, causing permanent injuries to the plaintiff.
In count 2, the plaintiff asks damages for injuries to the car, which was owned by his father, and the claim for which had been assigned to him. As grounds of negligence, he alleges: “That the defendant stopped said motor van on the paved portion of said highway at night, well knowing that said highway was an arterial highway and bore very heavy traffic, and the defendant stopped said truck on the paved portion of said highway without displaying any lighted tail light or red light to the rear, or other warning or signal of its location, all in violation of law.”
[2] For the determination of the questions presented, we must refer to the evidence. In the consideration of the motion for a directed verdict, the appellant is entitled to have the evidence considered in the light most favorable to him. This proposition is so well established as to require no citation of authorities. But see Robertson v. Carlgren, 211 Iowa, 963, 234 N. W. 824;Hamilton v. Wilson (Iowa) 240 N. W. 685. The evidence discloses that defendant's truck was, on the evening of February 17, 1931, driven east on Federal Highway No. 34, in charge of two of defendant's employees. As the truck proceeded upon its journey, one of the dual tires on the right-hand wheel went flat, and almost immediately the other dual tire on said wheel blew out. The truck was stopped and the two employees began immediately to remove the tire and replace the same by another, and were so engaged at the time of the accident. The evidence is uncontradicted that the truck was standing in plain view on the top of a little knoll with the right wheels very close to the right curb. In other words, the whole of the truck was standing on the right side of the pavement about as close to the curb as it was possible to place it. The truck was faced east. The highway for a number of miles ran in a straight easterly and westerly course. To the west of the knoll, where the truck was stopped for replacement of the tire, there is what is known in the record as the Bixler hill. The distance from the top of the Bixler hill to the top of the knoll where the truck was located is not definitely stated, but it is more than a quarter and less than a half mile. There is only one depression between these two locations. The truck lacked one inch of being 8 feet wide and stood 11 feet high. When empty, it weighed six tons, and at the time in question was carrying a load of about five tons. The testimony is that the shoulder to the right of the truck was soft and spongy, and to have driven the truck onto the shoulder would have caused it to sink and mire in the dirt. Plaintiff, at the time in question, approached the truck from the west. According to the testimony offered in behalf of the plaintiff, Powelson was traveling in the same direction ahead of the plaintiff.
Powelson testified: “As I came over the hill (the Bixler hill), I see 4 lights (lights on the truck) east of me up there on the hill, (the hill or knoll where the truck was located). As I went down this little knoll (the Bixler hill) and started up the other one for a little bit they were out of sight, and as I came on up the hill I see them again. I slowed up and drove on around. What made the lights go out of my vision I do not know. I have been back since and you could see everything as far as that is concerned. Whether or not they were turned off I do not know, but they were out of my vision a little bit. Nobody was between me and them, no car between me and that truck. I saw the red lights on the truck. I first saw the lights after I came in view of the Bixler hill.
“Q. Could you see the lights along the course you were traveling after that time? A. There was a place along there about half way, I did not see the lights for a little bit.
Q. And when you passed through that space? A. The lights come on again. After that I saw the lights all the time until I went around the truck.”
The only other testimony relative to the omission of lights upon the defendant's truck is that of the plaintiff himself and Wallace, who was riding with him. Their testimony upon this question is practically the same. The plaintiff testified that, as he approached from the west to the place where the truck was standing, there was no red light visible, except that on the car which he was following; that before he was injured, he did not see a red light at the place where he afterwards saw the truck. The plaintiff was asked. “What do you say to the jury if there had been lights on that truck on that hill that night could you or could you not have seen it from the Bixler hill, proceeding down the Bixler hill? A. Yes sir, I could.
Q. State whether or not you could have seen it until you came up immediately behind the car you were following? A. No sir.
Q. Could you see it as you followed the other car up the hill coming east? A. No, sir.
Q. About how far is it from the top of the Bixler hill to the place where you could not see it if there had been a red light on the truck that night? A. About one-eighth of a mile.”
Relative to other propositions involved, the plaintiff testified that the lights and brakes on his car were in good condition; that he was traveling about 40 miles an hour; that by using the brakes, he could stop in about 50 feet; that his headlights when turned on showed ahead so that he could see a distance of 100 to 150 feet; that, as he turned to the left to go around the car ahead of him, it also turned to the left; that when he, the plaintiff, turned out, the car immediately ahead of him also turned to the left “and I was so close to him when he started around the truck I put my brakes on and tried to stop and seen I could not stop without hitting the car in front of me or the truck so I drove off on the shoulder on the north side and that is where the shoulder gave away and I went down the bank”; that he turned out at the top of the hill, just before he reached the top of...
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