Hoffman v. Monroe Welding Supply Co.

• Decision Date: 06 February 1962
• Docket Number: No. 50530,50530
• Citation: 113 N.W.2d 237,253 Iowa 591
• Parties: Allce Zerahn HOFFMAN, Administratrix of the Estate of James Herman Zerahn, Deceased, Appellant, v. MONROE WELDING SUPPLY COMPANY and John C. Newkirk, Appellees.
• Court: Iowa Supreme Court

Page 237

113 N.W.2d 237

253 Iowa 591

Allce Zerahn HOFFMAN, Administratrix of the Estate of James Herman Zerahn, Deceased, Appellant, v. MONROE WELDING SUPPLY COMPANY and John C. Newkirk, Appellees.

No. 50530.

Supreme Court of Iowa.

Feb. 6, 1962.

Verne Lawyer, Des Moines, and Peter J. Peters, Council Bluffs, for appellant.

Philip J. Willson, Council Bluffs, for appellees.

LARSON, Justice.

As a result of a rear-end collision which occurred about 5:50 P.M. on December 19, 1957, between a 1949 Fort two-door automobile, in which plaintiff's decedent was a passenger, and a disabled single-axle truck on a straight stretch of Highway 75 north of Loveland, Iowa, James Herman Zerahn, plaintiff's decedent, was instantly killed. The automobile driver, Duane R. Heichel, suffered severe injuries and testified he was unable to recall the collision or the events which occurred during the last five miles of the trip. The defendant driver of the stalled truck had attempted to flag down the Heichel automobile but, as he faced the oncoming headlights, said he could not see the occupants therein. Arthur W. Savery, driving an automobile in the opposite direction, just passed the Heichel car prior to the collision and observed its operation but did not see plaintiff's decedent. Two other cars were following the Heichel car by 'a couple of car lengths' and collided with the wreckage. While the occupants of those cars did not testify, it appears there was no other person thereabouts who saw the accident. At the conclusion of the testimony plaintiff requested the following instruction:

'Further in regard to the question of contributory negligence, you are instructed that under the law of this state where a human being is killed by accident and there is no eyewitness and no obtainable direct evidence of the conduct or actions of the decedent immediately prior to and at the time of the accident, the law indulges the inference that the instinct of self-preservation or the love of life was such as to prompt him to exercise ordinary care for his safety. This inference is not conclusive but is a matter to be considered by the jury in connection with all the evidence in the case, and this inference is not to be indulged in where there is direct evidence obtainable as to the person's conduct at and shortly prior to the time of the accident, and in any event is only to be considered in connection with the facts and circumstances as shown in evidence.

'So in this case, if you find that there is an absence of any obtainable direct evidence as to what James Herman Zerahn (precaution) did or failed to do by way of preparation at and immediately prior to the accident in question, and no-eyewitness as to the manner in which the said James Herman Zerahn was conducting himself just prior to the time it is claimed he was killed, then you have a right to infer that he was exercising that caution which a person of ordinary care and prudence would exercise under like circumstances, unless the facts and circumstances shown in evidence on the trial of this case negative such inference, in which case such inference would not exist and you should give no consideration thereto.'

It was refused.

The court then submitted the final draft of its Instructions to counsel, which did not include any instruction on the so-called no-eyewitness rule as applied to plaintiff's decedent. Plaintiff objected in these words: 'Comes now the plaintiff and objects and excepts to the failure of the Court to include in the Instructions of the Court the Instruction on the no-eyewitness rule as it applied to the plaintiff's decedent, James Herman Zerahn, and objects and excepts to the failure of the Court in that regard in failing to give plaintiff's Requested Instruction #1, filed on behalf of the plaintiff's decedent, * * *.' The court overruled plaintiff's objections and exceptions and submitted the cause to the jury.

After jury verdict for defendants, plaintiff filed a motion for a new trial, setting out among other things: '3. That the Court erred in failing to instruct the jury as to the 'no-eyewitness rule' presumption as regards the conduct of James Herman Zerahn immediately prior to and at the time of the accident.' The court denied the motion and plaintiff appeals. We think that was error and a new trial should be granted.

I. As the name implies, the no-eyewitness rule may not be invoked if there is an eyewitness to the care exercised by the plaintiff's decedent. Where there is direct evidence as to his conduct just prior to and at the time of the accident, there is no room for an inference that he took reasonable precautions for his own safety. It may then be judged from what he in fact did, rather than from an inference as to what he might have done. Vandello v. Allied Gas and Chemical Co., Iowa, 110 N.W.2d 232; Lingle v. Minneapolis & St. L. Ry. Co., 251 Iowa 1183, 1187, 1188, 104 N.W.2d 467, and citations; Vol. 43, Iowa L.Rev. 57, 58, and citations; Vol. 6, May, 1957, No. 2, Drake L.Rev., 101. To receive the benefit of this rule it was incumbent upon the plaintiff to satisfactorily establish that an eyewitness to the conduct of his decedent was not obtainable. Merchants Transfer & Storage Co. v. Chicago, R. I. & P. Ry. Co., 170 Iowa 378, 393, 150 N.W. 720, 725. Defendants contend plaintiff must conclusively establish that there is no obtainable direct evidence before the court will be held in error for submitting to the jury the determination of whether an eyewitness was available. Low v. Ford Hopkins Co., 231 Iowa 251, 1 N.W.2d 95. Such is not the law in Iowa, as was specifically pointed out in Lingle v. Minneapolis & St. L. Ry. Co., supra. In the Low case we held that it was plaintiff's burden to prove decedent's freedom from contributory negligence, and said: 'He was not entitled to the benefit of the no eyewitness rule unless it appeared there was no obtainable direct evidence of decedent's conduct at, and immediately prior to, the time of her fall. It is not sufficient that no one testified upon the trial to having seen Mrs. Low fall.' There it appeared a number of clerks and customers were in the store at the time, but plaintiff's only evidence of no available witnesses was testimony by an assistant store manager that he made inquiry of the clerks and found none who had seen her fall. As pointed out in the Lingle case, that showing did not justify plaintiff's claim it was shown beyond dispute there was no obtainable direct evidence of decedent's conduct and that the jury should have been so instructed. The Low case does not hold plaintiff had the burden to show conclusively there was no such evidence.

Here there is no dispute as to the existing conditions or as to the parties present at the scene of the accident. It was dark and all car lights were on. The driver, Duane R. Heichel, was the only other person in the automobile involved and he testified he had no recollection of what transpired just...