Hawkins v. Burton
| Decision Date | 27 September 1938 |
| Docket Number | 44312. |
| Citation | 281 N.W. 342,225 Iowa 707 |
| Parties | HAWKINS v. BURTON et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Decatur County; Homer A. Fuller, Judge.
This is an action for damages for the death of Mrs. Cain, caused by an automobile accident. There was a general denial. Verdict was returned for plaintiff. A motion for a new trial and exceptions to instructions were overruled, judgment entered for plaintiff, and defendants appeal.
Affirmed.
Baker & Parrish, of Leon, and Stephens, Thornell & Millhone, of Clarinda, for appellants.
G. F Hoffman, of Leon, and O. M. Slaymaker, D. D. Slaymaker, and R. E. Killmar, all of Osceola, for appellee.
The defendant Burton was an employee, and driver of the truck, of his codefendant Farmers Elevator Company, and was driving with the consent and in the business of the corporate defendant.
The accident occurred about 10:30 o'clock a. m. on the 24th day of October, 1935, on the South River bridge on highway No. 65, in Warren county. Plaintiff's testate was one of four persons riding in a Chrysler car, going north, which came in collision with the defendants' truck. In the car was a young man, Lindsey, driving; at his right a girl, Helen Hawkins; behind the driver, the deceased, Eva W. Cain, and at her side, Mrs. Hawkins.
The bridge is 188 feet long, made up of a main or truss span of 102 feet, with approaches 43 feet long. The highway southward from the bridge swings in a curve to the left for a considerable distance. To the north for a quarter to a half mile the highway runs north and then veers to the northwest. The bridge between trusses is 18 feet wide. The pavement thereof is narrowed by a cement curb on either side extending from each side of the bridge approximately 8 or 9 inches.
While there was conflict in some aspects of the testimony, the jury could have found the facts hereinafter set forth. We omit in large measure the gruesome details which appear in this record.
The collision occurred at a point approximately 32 or 33 feet from the south end of the truss span. At that point, after the accident, there was a mark on the east curb which seemed to indicate, when considered with marks on the wheel of the car, the place at which the Chrysler car struck after its contact with the truck. After the accident the car stood in a diagonal direction facing northwest, with one corner against the east rail which ran along the trusses of the bridge. The bridge on that side, and the car, had marks and paint which indicated that the two had come together with great violence. The first witness on the scene said the body of Mrs. Hawkins lay about 7 feet south of the car, and that of the driver a short but undisclosed distance beyond her to the south, both on the east half of the bridge. Helen Hawkins was found about 18 feet north of where the car stood. Mrs. Cain's body was not discovered for a short time, but was later found in the river bed under the east edge of the bridge. Helen was the only one who was not killed. The trusses of the bridge from a point about 32 feet from the south end were bespattered with blood and brains, and hair of the color of that of Mrs. Cain. In the river bed there was a streak or string of brains leading a distance of 59 feet southeast from the body, and not far away the door and hinges of the Chrysler. The truck, after the accident, passed off the bridge, knocking down the guard-rail and several posts, and at a point approximately 188 feet from where the collision occurred, turned over, coming to rest on the east side of the road.
This condensed description will give some idea of the condition of the car. The front bumper was intact; the headlights were unbroken, and worked. There were no scratches or marks on the front bumper. The left front wheel was all right except that it showed that the hub cap had been struck. The engine worked all right, and the horn worked also. The side of the left front fender 8 or 10 inches back from the front end was scraped, and as it went back it had been struck harder. The windshield was gone and the left parking light was missing. The steering wheel was bent. The running board was loose and pushed down. The whole left side of the car above the running board was gone, as was the top. The left rear wheel was off except for the hub and part of the spokes. The left end of the rear axle was pushed back. The rear seat and the back end were loose. The spare tire had been bent or forced out, and the left rear tire and rim were loose. There was a scratch on the back panel at the right rear corner at a distance above the ground corresponding to the rail of the bridge. There were no marks on the right- hand side of the car except the one just mentioned.
There was much blood and debris at the place of the collision, all on the east, or the Chrysler's, side of the bridge. There were no marks on the floor of the bridge, or the west side, and none on the rail. Defendants contend that there was a scratch on the west side, made by a rod which had been broken in the collision and which dragged as the truck went on from the point of collision. There was conflict, however, as to this.
Helen Hawkins testified that as they went onto the bridge they were driving about 25 or 30 miles per hour, probably closer to 25 miles. Her memory of the events extended only to the point at or near the south end of the truss span. She testified that at no time was the car over on the west side of the black line.
The driver of the truck, Burton, approached the bridge at about 40 miles an hour, which he claims to have reduced to about 30 miles an hour. He testified that at the moment of contact he was driving 25 miles an hour. The truck weighed 5,600 pounds, with a load of corn weighing something over 9,900 pounds.
The county attorney, who was at the scene of the accident in his official capacity, testified that he discovered no scratches on the floor of the bridge; that he made an investigation of the rate of speed at which the truck driver claimed he was driving, and that Burton said in substance that he was driving 40 miles an hour, but had slowed down to let a truck off the bridge, and that he went onto the bridge at the rate of 35 miles an hour.
The truck was 21 or 22 feet long, and the bed of the box about 12 feet long inside, was 7 1/2 feet wide outside measurements, and had a depth of 37 inches. The bed was well built of wood with steel reinforcements around the square corners. The corners stuck out about 2 1/2 feet beyond the cab. It had dual wheels with pneumatic tires. In the collision the left front corner of the box was broken open in a V shape, with an opening at the top perhaps a foot wide. A portion of a hand was found wedged in this opening.
The condition of the truck after it was removed from the scene of the accident was thus described: On the left side of the truck the headlight was gone and the reflector was hanging out. The left front fender was smashed; the left cab door was smashed in. There were paint marks on the left door, corresponding to the color of the paint on the Chrysler car.
The defendant Burton on a previous occasion testified that he did not see the Chrysler car until he was in the middle of the bridge, which brought him within about 50 feet of the car before he noticed it. The distance given is an approximation, but the jury, from it and other circumstances, could get an idea of the force with which these motor vehicles came together. The defendant's claim that the Chrysler was traveling on the wrong side of the road, and that the driver made an attempt to pull it over to its own side, with the result that the rear end of the car was " slammed against the front end of the truck," is hardly borne out by the position and condition in which the Chrysler was found after the accident.
With this general outline the questions of negligence which the court submitted can be fairly well understood.
Before proceeding to a discussion of that, however, we take up defendants' first complaint. This is that the court erred " in overruling the appellants' motion to enter an order setting aside the verdict of the jury and to grant to the defendants a new trial, and especially in overruling grounds No. II and No. III of said motion for new trial which said grounds were that the court was in error in overruling the defendants' motion for a directed verdict at the close of plaintiff's evidence, and at the close of all the evidence in said...
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