Hayes v. Stunkard, 46201.

• Citation: 233 Iowa 582,10 N.W.2d 19
• Decision Date: 14 June 1943
• Docket Number: No. 46201.,46201.
• Parties: HAYES v. STUNKARD.
• Court: United States State Supreme Court of Iowa

233 Iowa 582
10 N.W.2d 19

HAYES
v.
STUNKARD.

No. 46201.

Supreme Court of Iowa.

June 14, 1943.

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 defendant. Plaintiff appeals.

Reversed.

[10 N.W.2d 20]

Edward R. Boyle, of Clear Lake, for appellant.

Senneff & Duncan, of Mason City, for appellee.

MULRONEY, Justice.

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

[10 N.W.2d 21]

house. Some of the glass was on top of the snow on the...