Henneman v. McCalla

Decision Date07 February 1967
Docket NumberNo. 52344,52344
Citation148 N.W.2d 447,260 Iowa 60
PartiesOrville HENNEMAN, Administrator of the Estate of Clara Henneman, Appellee, v. David McCALLA and Mariann Sue McCalla, Defendants-appellants, Floyd Raymond Peterman, Defendant.
CourtIowa Supreme Court

Stephens, Thornell & Millhone, Clarinda, for appellants.

Davidson & Hemphill, Clarinda, for appellee.

RAWLINGS, Justice.

Plaintiff-administrator brought an action at law against three defendants claiming damages for death of his decedent, which resulted from two collisions involving three motor vehicles.

The ultimately tragic chain of events began about 11:00 P.M., August 1, 1963, on highways 2 and 71, near the east edge of Clarinda. An east bound Ford pickup owned by defendant David McCalla, consent operated by his defendant sister, 18 year old Mariann Sue McCalla, attempted a left no intersection turn just as a same direction automobile operated by Dan McComb was starting to pass. What may be best described as a side to side collision resulted. The testimony is in conflict as to whether any left turn signal was ever given by Mariann Sue McCalla.

McComb's car came to rest off the road some distance to the northeast.

The McCalla pickup skidded sideways and came to a stop facing southeasterly, somewhere near the center of the paved portion of the highway, about 27 east of the point of impact.

McComb and his guest, Janice Miller, went at once to the McCalla vehicle.

Other automobiles subsequently passed the pickup, including an east bound automobile operated by plaintiff's decedent, Clara Henneman. She stopped after passing, parked her car on the south shoulder of the road, and after placing reflector on the highway went to the location of the McCalla pickup.

She, McComb, and Janice Miller were standing on the east side of the McCalla car trying to calm the hysterical Mariann Sue McCalla and get her out of there.

A second accident occurred about five or ten minutes after the first one when an automobile operated by defendant, Floyd Raymond Peterman, then intoxicated, also traveling in an easterly direction, hit the westerly side of the McCalla pickup, causing it to strike Clara Henneman, resulting in her instantaneous death.

The testimony is also in conflict as to whether Mariann Sue McCalla ever got out of the Ford pickup after the first and before the second accident.

The nonappearing defendant, Floyd Raymond Peterman, was adjudged to be in default. Trial to a jury resulted in a verdict adverse to defendants McCalla.

Although judgment in the sum of $23,620 was entered against all three defendants, David McCalla and Mariann Sue McCalla alone appeal. For our purpose they will be dealt with as defendants.

I. This being an action at law it is reviewable only on errors properly assigned. Rule 344(a)(3), R.C.P., and Marean v. Petersen, Iowa, 144 N.W.2d 906, 909.

II. Defendants contend the trial court, as a matter of law, should have determined the acts and conduct of Peterman constituted an 'intervening cause'.

In so doing they, in effect, take the position negligence, if any, on the part of Mariann Sue McCalla was insulated from any causal connection with the death of plaintiff's decedent by reason of the negligence of Peterman, which was an efficient intervening force and superseding cause of the second impact.

The stand so taken by defendants is without merit under the factual situation here presented.

We are dealing with one phase of proximate cause. See Annos. 100 A.L.R.2d 944.

In Chenoweth v. Flynn, 251 Iowa 11, 16, 99 N.W.2d 310, this court said: 'Proximate cause' is any cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred. McClure v. Richard, 225 Iowa 949, 282 N.W. 312. 'Proximate cause' is a primary moving cause or predominating cause from which the injury follows as a natural, direct and immediate consequence and without which it would not have occurred. Daly v. Illinois C.R. Co., 248 Iowa 758, 80 N.W.2d 335. It is not necessary to a defendant's liability that the consequences of his negligence should have been foreseen, and it is sufficient if the injuries are the natural, though not necessary or inevitable, result of the wrong. Cowman v. Hansen, 250 Iowa 358, 92 N.W.2d 682.' In this connection see also Klunenberg v. Rottinghaus, 256 Iowa 731, 739, 129 N.W.2d 68; Ness v. H. M. Iltis Lumber Co., 256 Iowa 588, 593, 128 N.W.2d 237; and Lockwood v. Wiltgen, 251 Iowa 484, 490, 101 N.W.2d 724.

And in Restatement, Second, Torts, section 447, the proximate cause rule as it relates to intervening acts is stated as follows:

'The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

'(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

'(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

'(c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.'

Referring again to Chenoweth v. Flynn, 251 Iowa 11, 17--18, 99 N.W.2d 310, we there said: 'It is a rule too well established to require the citation of authority, that the question of proximate cause is generally for the jury to determine, although the line of demarcation between what is sufficiently proximate and what is too remote is often a thin one. If, upon looking back from the injury, the connection between the negligence and the injury appears unnatural, unreasonable and improbable in the light of common experience, such negligence would be a remote rather than a proximate cause. If, however, by a fair consideration of the facts based upon common human experience and logic, there is nothing particularly unnatural or unreasonable in connecting the injury with the negligence, a jury question would be created.' In this connection see also Rule 344(f)(10), R.C.P.; Sayre v. Andrews, Iowa, 146 N.W.2d 336, 343--344; Mass v. Mesic, 258 Iowa 1301, 142 N.W.2d 389, 392; Lockwood v. Wiltgen, 251 Iowa 484, 490--492, 101 N.W.2d 724; Knaus Truck Lines, Inc. v. Commercial Freight Lines, 238 Iowa 1356, 1366, 29 N.W.2d 204; McClure v. Richard, 225 Iowa 949, 953, 282 N.W. 312; Gray v. City of Des Moines, 221 Iowa 596, 599, 265 N.W. 612, 104 A.L.R. 1228; Godbey v. Grinnell Electric & Heating Co., 190 Iowa 1068, 1074, 181 N.W. 498; and Liming v. Illinois Cent. Ry. Co., 81 Iowa 246, 252, 47 N.W. 66.

Touching on this subject the court, in Milwaukee and St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256, 259, stated as follows: 'In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.'

Furthermore proximate negligence need not be the sole cause of an injury. Concurrent negligence may be a proximate cause. Klunenberg v. Rottinghaus, 256 Iowa 731, 736, 129 N.W.2d 68; Ruud v. Grimm, 252 Iowa 1266, 1272, 110 N.W.2d 321; Allied Mut. Cas. Co. v. Long, 252 Iowa 829, 834, 107 N.W.2d 682; and Waterloo Sav. Bank v. Waterloo, C.F. & N.R., 244 Iowa 1364, 1372, 60 N.W.2d 572.

The factual situation in the case at hand discloses the jury could reasonably find the chain of events was such that the McCalla pickup would not have been in its precarious position on the highway were it not for the first accident, this resulted from Mariann's negligence, and the position of the McCalla vehicle created a hazard which, coupled with the concurrent negligence of Peterman, caused the second death dealing collision. In this regard the jury here determined, upon special interrogatory, Peterman's negligence was not the sole proximate cause of Clara Henneman's death.

There is here no rational basis upon which to conclude the trial court erred in refusing to hold, as a matter of law, the negligence of Peterman was an efficient intervening force which constituted a superseding cause of Clara Henneman's death.

The foregoing finds ample support in other decisions and authorities. See 65 C.J.S. Negligence § 111(5), page 1216; 38 Am.Jur., Negligence, section 67, page 721; Restatement, Second, Torts, section 435(1); Harper and James The Law of Torts, section 20.3; and Annos. 58 A.L.R.2d 274--284.

We have considered McClure v. Richard, 225 Iowa 949, 282 N.W.2d 312, and Parmenter v. City of Marion, 113 Iowa 297, 85 N.W. 90, cited by defendants, but find they are not factually comparable, and tend to be more favorable to plaintiff than to defendants on relevant principles of law.

III. Defendant also assign as error the trial court's failure to submit their requested instruction on intervening cause.

This proposal, clearly slanted in favor of defendants, is repetitious and not properly balanced.

The basic element which it contains is that negligence, if any, on the part of Mariann Sue McCalla, would not be a proximate cause of the death of plaintiff's decedent if it had causatively resulted from the intervening act of Floyd Raymond Peterman, which totally ignores the fact there may be concurrent negligence.

On the subject of requested instructions this court said in Kinyou v. Chicago & N.W. Ry. Co., 118 Iowa 349, 361, 92 N.W. 40: 'As a rule, instructions offered by counsel are not so framed that the court is justified in giving them literally as asked, but, if...

To continue reading

Request your trial
41 cases
  • Adams v. Deur
    • United States
    • Iowa Supreme Court
    • 9 Diciembre 1969
    ...of the expert himself.' And see also 31 Am.Jur.2d, Expert and Opinion Evidence, section 36, page 537. A reading of Henneman v. McCalla, 260 Iowa 60, 148 N.W.2d 447, will disclose it does not stand as a bar to the admissibility of Dr. Kenkel's response to hypothetical questions in the instan......
  • Rosenau v. City of Estherville
    • United States
    • Iowa Supreme Court
    • 29 Junio 1972
    ...misapprehension created by use of this particular word. See Matuska v. Bryant, 260 Iowa 726, 150 N.W.2d 716 (1967); Henneman v. McCalla, 260 Iowa 60, 148 N.W.2d 447 (1967). The remaining objection to instruction 13--that it set out the law of attractive nuisance which had not been pled or p......
  • Schmitt v. Jenkins Truck Lines, Inc.
    • United States
    • Iowa Supreme Court
    • 5 Septiembre 1969
    ...supra, 249 Iowa at 578, 88 N.W.2d at 125. See also Mundy v. Olds, 254 Iowa 1095, 1104, 120 N.W.2d 469, 475, and Henneman v. McCalla, 260 Iowa 60, 78, 148 N.W.2d 447, 458. The evidence from which the jury makes its determination need not be so definite as to be capable of exact mathematical ......
  • Allen v. Lindeman
    • United States
    • Iowa Supreme Court
    • 7 Febrero 1967
    ...because of its size, where it is lacking in evidential support although there may be no passion or prejudice. Henneman v. McCalla, 258 Iowa ---, 148 N.W.2d 447, 459, filed at this sitting, accurately states the rule to which we are firmly committed. Beyer v. City of Dubuque, 258 Iowa 476, 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT