Hittle v. Jones

• Decision Date: 24 October 1933
• Docket Number: No. 41886.,41886.
• Citation: 250 N.W. 689,217 Iowa 598
• Parties: HITTLE v. JONES et al.
• Court: Iowa Supreme Court

217 Iowa 598

250 N.W. 689

HITTLE

v.JONES et al.

No. 41886.

Supreme Court of Iowa.

Oct. 24, 1933.

Appeal from District Court, Marion County; E. W. Dingwell, Judge.

This action was brought by the plaintiff-appellant to recover, from the defendants-appellees, damages for the wrongful death of Clarence Hittle. At the close of the plaintiff's evidence, the defendants made a motion for a directed verdict in their favor. The motion was sustained, and judgment entered accordingly. From the judgment thus entered, the plaintiff appeals.

Affirmed.McCoy & McCoy, of Oskaloosa, and H. E. De Reus, of Knoxville, for appellant.

Hallagan, Fountain & Stewart, of Des Moines, and Johnson & Teter, of Knoxville, for appellees.

KINDIG, Justice.

At about dusk on the evening of August 8, 1931, a collision between two automobiles occurred near the outskirts of the town of Lovilia, at a point where Primary Highway No. 60, a north and south paved thoroughfare, intersects with Buxton road, a county highway extending in an easterly and westerly direction. As a result of that collision, Clarence Hittle, a man twenty-four years of age, was killed. Immediately before, and at the time, the collision occurred, Clarence Hittle was driving a Model A Ford eastward on Buxton road, across Primary Highway No. 60. While Clarence Hittle thus drove his automobile, the defendant-appellee Ray Jones was operating a Whippet car northward, first toward and then into the intersection of Buxton road and Primary Highway No. 60. The cars, as before explained, collided at the intersection of the two roads.

After the death of Clarence Hittle, Florence Hittle was duly appointed the administratrix of his estate. Accordingly, Florence Hittle, as such administratrix, on September 17, 1931, commenced this action as plaintiff to recover damages from the defendants-appellees, Willis Jones and Ray Jones, for the wrongful death of Clarence Hittle. Because at the trial of the cause the district court directed a verdict against the plaintiff-appellant in the appellees' favor, she appeals. Willis Jones and Ray Jones were made defendants because one was the owner and the other the driver of the car.

It is said by the appellant that the appellee Ray Jones caused the death of her intestate through negligence. Many items of negligence are set forth in the appellant's petition. Among them are the allegations that the appelleeRay Jones exceeded the special speed limit of 25 miles an hour, failed to control his car immediately before the collision, and negligently refrained from turning to the left in order to pass behind the automobile driven by the appellant's intestate. Other grounds of negligence are also alleged. For the purposes of our discussion, we will assume, without deciding, that the appellee Ray Jones committed the negligence alleged.

I. In their answer to the appellant's petition, the appellees deny the allegations thereof. Consequently, in order to recover in the case at bar, it is necessary for the plaintiff appellant to allege and prove her intestate's freedom from contributory negligence. Realizing that responsibility, the appellant argues that she has met the burden.

On the other hand, it is earnestly contended by the appellees that the appellant has not shown that her intestate was free from contributory negligence at and prior to the collision. The appellant relies at this juncture on the rule permitting an inference that one deceased, because of the instinct of self-preservation, used due care. This inference is allowed under proper facts and circumstances.

[1] “Direct and positive evidence that the decedent did not by his own negligence contribute to the injury is not required. Where such evidence cannot be obtained it is proper for the jury to consider the instincts of men, which naturally lead them to avoid danger, as evidence of due care on the part of the person injured.” Hopkinson v. Knapp & Spalding Co., 92 Iowa, 328, reading on pages 331 and 332, 60 N. W. 653, 655. See, also, Dalton v. Chicago, R. I. & P. Ry. Co., 104 Iowa, 26, 73 N. W. 349;Barrett v. Chicago, Milwaukee & St. Paul R. R. Co., 190 Iowa, 509, 175 N. W. 950, 180 N. W. 670;Stukas v. Warfield-Pratt-Howell Co., 188 Iowa, 878, 175 N. W. 81; Wilson, Adm'x, v. Chicago, Milwaukee & St. Paul R. R. Co., 161 Iowa, 191, 142 N. W. 54.

[2] In the case at bar, however, it is claimed by the appellees that the foregoing rule does not apply because there were eyewitnesses to the accident. If there were such witnesses to each material act on the part of the appellant's intestate, then the rule relating to the instinct of self-preservation would not apply. Brown v. McAdoo, 195 Iowa, 286, 188 N. W. 7;Stark, Adm'x, v. Tabor & Northern R. R. Co., 161 Iowa, 393, 142 N. W. 977;Ames, Adm'x v. Waterloo & Cedar Falls Rapid Transit Co., 120 Iowa, 640, 95 N. W. 161. Nevertheless, if the witnesses who attempt to describe the decedent's actions in a case of this kind did not see him during all the material moments of his actions, the inference of due care may be drawn under the rule relating to the instinct of self-preservation. Gray, Adm'r, v. Chicago, R. I. & P. R. R. Co., 160 Iowa, 1, 139 N. W. 934;Platter, Adm'x, v. Minneapolis & St. L. Ry. Co., 162 Iowa, 142, 143 N. W. 992;Barrett v. Chicago, M. & St. P. R. Co. (190 Iowa, 509, 175 N. W. 950, 180 N. W. 670), supra. During our discussion in the Barrett Case, we said on pages 520 and 521 of 190 Iowa, 175 N. W. 950, 955, 180 N. W. 670: “One Roach, who was at work in the carpenter shop, testified that Berger had his ‘head turned towards the east’ when the automobile went upon the railroad crossing. While several witnesses observed the decedents driving the car west on Fourth street and up Seigel street towards the crossing, no one pretended to observe what either Berger or Reinig did prior to the collision, save that Reinig was operating the car. No one was able or undertook to say whether either of the decedents looked or listened, or omitted so to do, for the approach of the train. In these circumstances, the inference that decedents exercised the instinct of self-preservation in approaching the track might well be considered in connection with the other evidence adduced in ascertaining whether they exercised that vigilance in keeping a lookout and listening which the law requires of every one in approaching a railroad crossing.”

[3] It appears from the record in the case at bar that witnesses observed the appellant's intestate driving eastward along Buxton road toward and into its intersection with Highway No. 60. These witnesses saw the appellant's intestate stop at a stop sign stationed on the south side of Buxton road forty feet west of the west line of the pavement on Highway No. 60. This pavement is eighteen feet wide. Also those witnesses testified that before the appellant's intestate stopped at the stop sign, and thereafter as he proceeded to the point of the collision, he operated his car at a speed of approximately ten miles per hour. Although the witnesses thus described the actions of the appellant's intestate, none of them attempted to say whether he looked in the direction of the appellees' approaching car before entering the intersection and before entering the paved portion thereof. So far as anything appears in the record, the witnesses were not in a position to, and did not, see what, if any, observations the appellant's intestate made before attempting to cross Primary Highway No. 60. No witness testified whether the appellant's intestate did or did not make observations before entering, and while crossing, Primary Highway No. 60. Consequently there is no testimony or other evidence indicating what the appellant's intestate did or did not do in reference to making these observations. Under these circumstances the rule permitting an inference of due care, based on the instinct of self-preservation, may be applied (Barrett v. Chicago, M. & St. P. R. R. Co., 190 Iowa, 509, 175 N. W. 950, 180 N. W. 670, supra, and other cases last above cited), unless the physical facts, evidence, and surrounding circumstances show that due care could not have been exercised.

[4] II. If the evidence, including the surrounding circumstances and physical facts, indicates that the appellant's intestate did not exercise due care immediately before and at the time of the collision, then the inference of due care based upon the instinct of self-preservation does not exist. Oaks v. Chicago, R. I. & P. Ry. Co., 174 Iowa, 648, 156 N. W. 740;Sohl, Adm'r, v. Chicago, R. I. & P. Ry. Co., 183 Iowa, 616, 167 N. W. 529;Wasson v. Illinois Central R. R. Co., 203 Iowa, 705, 213 N. W. 388;Tegtmeyer v. Byram et al., 204 Iowa, 1169, 216 N. W. 613;Brown v. McAdoo (195 Iowa, 286, 188 N. W. 7), supra; Van Gorden v. City of Fort Dodge et al. (Iowa) 245 N. W. 736. Hence, when the evidence, physical facts, and surrounding circumstances warrant it, the district court may direct a verdict for the defendant in a case of this kind. Van Gorden v. City of Fort Dodge et al. ([Iowa] 245 N. W. 736), supra, and other cases immediately above cited.

[5] In determining whether the facts in a given case warrant the direction of a verdict on the theory of contributory negligence, two general propositions must be considered. They are: First, whether there is a conflict in the evidence as to what the one alleged to be contributorily negligent did or did not do at the time he was injured; and, second, whether there might fairly be different opinions with respect to the conduct of the one said to be guilty of contributory negligence, and one man honestly and reasonably would say that such conduct was in accord with ordinary prudence, while another, just as sincerely and with equal reason, would contend that such conduct was not prudent. Murphy v. Iowa Electric Co., 206 Iowa, 567, 220 N. W. 360;Perkins v. Schmit Construction Co. (Iowa) 245 N. W. 343. Under the facts in this record, when...