Hayes v. Stunkard
| Decision Date | 14 June 1943 |
| Docket Number | 46201. |
| Citation | 10 N.W.2d 19,233 Iowa 582 |
| Parties | HAYES v. STUNKARD. |
| Court | Iowa Supreme Court |
Edward R. Boyle, of Clear Lake, for appellant.
Senneff & Duncan, of Mason City, for appellee.
The tragic accident that resulted in Mrs. Verbeckmoes' death occurred about 5:30 P.M. on November 8, 1941. In some manner she was struck by defendant's truck driven by Kenneth Knutson and hurled to the parking in front of her own home in Clear Lake. She died about thirty minutes later in the doctor's office without regaining consciousness. In this suit brought by the executrix against the employer of Knutson, plaintiff relied largely upon circumstantial evidence to establish the driver's negligence. Defendant's motion for directed verdict at the close of all the testimony on the grounds that the evidence failed to establish the driver's negligence and Mrs Verbeckmoes' freedom from contributory negligence was sustained by the court. We will first examine the evidence tending to establish the driver's negligence.
Gertrude Verbeckmoes was a woman 57 years old, weighing about 210 pounds. During the afternoon of November 8, 1941, she was riding in the front seat of a car owned and driven by Hattie Mason. Inez Curvo was in the back seat. Hattie Mason drove to the Verbeckmoes home and stopped at a point opposite the sidewalk entrance to the house, but across the street. The car was stopped on the right or west side of Second Street facing south and Mrs. Verbeckmoes got out of the front seat and stood along side of the car for a moment. Inez Curvo handed her a small acorn squash and observed Mrs. Verbeckmoes go to the rear of the Mason car and step off the curb toward her own home across the street. Mrs. Mason then drove off in a southerly direction on Second Street to Mrs. Curvo's home. Both Mrs. Curvo and Mrs. Mason said they met no car coming from the opposite direction in driving five blocks down Second Street. The street was 30 feet wide from curb to curb. There was some snow on the ground but none on the paving or sidewalks.
In some manner Mrs. Verbeckmoes was struck by defendant's truck driven by 17 year old Kenneth Knutson. It is practically undisputed that after the accident Mrs. Verbeckmoes was lying unconscious in about the center of the parking in front of her house and 55 feet north of the sidewalk entrance to the Verbeckmoes home. The maid in the house immediately north of the Verbeckmoes home heard the sound of the impact when the truck struck Mrs. Verbeckmoes. When she came out on the parking where Mrs. Verbeckmoes was lying unconscious in a pool of blood, she saw Knutson who was a little hysterical and heard him say that "he didn't see her at all until just as he hit her."
The undertaker who placed her in the ambulance and the doctor who examined her immediately after the accident described the appearance of her body. They said: "Her right leg was badly mangled and broken and the bones were protruding from the wounds some four or five inches-right across her right leg about midway between the ankle and the knee was plainly the imprint of where she had been hit by something, which imprint was three or four inches wide; there was an imprint of that kind there where she had been hit hard by something-(the imprint) was right at the point of the break.-She had a bad cut on her scalp over the right ear-the scalp being cut clear through to the bone-there was evidence of contusion at the right temple-there were bruises there-her right hand *** was bruised and black from her elbow to the tips of her fingers-her right shoulder was probably broken-(ribs on the right side of her body) were fractured-there were minor bruises over quite a large area *** and the right side of the body and abdomen and above and about the right hip-on the left side of her body I found nothing other than some minor scratches-(her left leg) was apparently normal-(her left hip) wasn't battered up at all or anything of that kind or broken or badly bruised-(she died of) fracture of the skull and incidental shock."
The chief of police and two highway patrolmen testified that about 7 o'clock in the evening after the accident they measured the distance from the sidewalk entrance to the Verbeckmoes home to the pool of blood on the parking. The distance was 55 feet. They observed pieces of headlight glass near the curb on the parking on both sides of the sidewalk entrance to the house. Some of the glass was on top of the snow on the parking. More glass was distributed along the curb to the north. These officers examined the Stunkard panel truck that evening. The right front headlight was broken and the glass found on the parking was identical as to quality, design and thickness with the part of the glass remaining in the headlight. This right headlight was also "twisted and bent around some." The radiator grill on the right hand side was broken upward and the fender was dented and bent in. "The radiator itself was touching the fan." The right portion of the bumper had a little bend in it "just to the left of where it fastens on the frame on the right hand side."
Defendant's entire evidence consists of the statement of Kenneth Knutson. At the time of the trial he was in the Navy. So the parties stipulated that if he were present he would testify that he was driving not to exceed 25 miles per hour about 4 feet from the curb as he approached the point of the accident. He then states:
The foregoing evidence presents the two theories of this accident. Plaintiff in effect contends that Mrs. Verbeckmoes was struck after she walked across the street in front of her home and after she was on, at, or next to the curbing at the sidewalk entrance to her home; that this is proven by the testimony of persons who saw her start across the street, by the glass at the sidewalk entrance near the curb, by the undisputed evidence of the injuries to the right side of her body and by the evidence that she was thrown up on the parking; that excessive speed was shown by the fact that Mrs. Verbeckmoes was hurled or dragged 55 feet, and the radiator of the car and the bumper were bent back, and that failure of the driver to maintain a proper lookout was shown by the admission that he did not see her until just before he hit her.
Defendant's theory of the accident is in direct conflict with plaintiff's theory. It is all contained in Kenneth's statement. He says that she was standing on the parking and that she went into the street and into the path of his truck. This means that unless she was walking backward, she was struck on her left side. The undisputed evidence, however, is that her left side was barely scratched. Defendant's theory also puts the place of impact out in the street more than four feet from the curb. Kenneth stated he was driving 4 feet from the curb and that he swerved left before he struck her. The undisputed evidence is that after the collision her body was up on the parking. The defendant's theory, as shown by Kenneth's statement, places the point of impact north of the sidewalk entrance, but there is evidence that headlight glass was found on the snow at this sidewalk immediately after the accident.
It is the general rule that when the evidence fairly presents two theories as to the cause of an injury, and both theories receive rational and reasonable support in the evidence, then the question is for the jury. As stated in Carpenter v Security Fire Insurance Co., 183 Iowa 1226, 1234, 168 N.W 231, 233: "The question for the court is not whether reasonable minds might differ as to which theory was better supported by the evidence, but whether the theory adopted upon which liability is predicated is so sustained by the record that a fair controversy exists as to whether or not it is in fact the true theory."
The trial court apparently found that plaintiff's testimony was of insufficient probative value upon which...
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Hayes v. Stunkard
...233 Iowa 58210 N.W.2d 19HAYESv.STUNKARD.No. 46201.Supreme Court of Iowa.June 14, Appeal from District Court, Cerro Gordo County; Tom Boynton, Judge. Executrix sued for damages for the death of her testatrix who was struck by defendant's delivery truck. Directed verdict and judgment for defe......