Illingworth v. INDUSTRIAL MOLASSES CORPORATION

• Citation: 272 F.2d 845
• Decision Date: 18 January 1960
• Docket Number: No. 16150.,16150.
• Parties: Frank ILLINGWORTH, Appellant, v. INDUSTRIAL MOLASSES CORPORATION et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

272 F.2d 845 (1959)

Frank ILLINGWORTH, Appellant, v. INDUSTRIAL MOLASSES CORPORATION et al., Appellees.

No. 16150.

United States Court of Appeals Eighth Circuit.

December 24, 1959.

Rehearing Denied January 18, 1960.

John C. Stevens, of Randall & Stevens, Cedar Rapids, Iowa, presented oral argument on behalf of appellant.

Ernest F. Pence, of Sargent, Spangler, Hines & Pence, Cedar Rapids, Iowa, made argument for appellee.

Before GARDNER, VOGEL, and MATTHES, Circuit Judges.

GARDNER, Circuit Judge.

Appellant, Frank Illingworth, was the owner and driver of a truck-tractor which, while it was being driven westward on Highway No. 6, about one mile east of South Amana, Iowa, became stalled while partly on the paved portion of the highway. A truck-trailer driven by appellee Laverne Carrington in a westerly direction collided with appellant's stalled tractor. The tractor driven by appellee Carrington belonged to appellee Industrial Molasses Corporation, which also owned the cargo of molasses being transported in the trailer attached to the tractor. Based upon claims of personal injuries or damage to property resulting from this accident two actions were brought, one by appellees Carrington and Industrial Molasses Corporation for personal injuries to Carrington and damages to property of Industrial Molasses Corporation, and the other by one Kenneth C. Koch doing business as Chillicothe Cartage Company, for damages to property.

In the action brought by Carrington and Industrial Molasses Corporation it was alleged in the complaint that defendant in that action, appellant here, was negligent in the following particulars: (a) in stopping, parking, or leaving standing, said truck upon the paved traveled part of U. S. Highway No. 6; (b) in failing to leave said truck stopped, parked or standing off of the paved or main traveled part of said Highway No. 6 and upon the shoulder of said highway; (c) in failing to leave a clear and unobstructed width of at least twenty feet of said Highway No. 6 opposite said parked or standing vehicle for the free passage of other vehicles, including plaintiff's vehicle; (d) in failing to display a lighted fusee, lighted flares, red reflector electric lanterns, or red reflectors, when defendant's tractor was stopped on the traveled portion of Highway No. 6; (e) in failing to display a red light visible to the rear from a distance of 500 feet, when the defendant's tractor was parked or stopped upon Highway No. 6.

Illingworth, in his answer to the complaint, denied all charges of negligence charged in the complaint and by way of counterclaim charged the plaintiffs with negligence in the following particulars; (a) the failure to operate said tractor and trailer at such a rate of speed as to permit the same to be brought to a stop within the assured clear distance ahead; (b) the failure to have said tractor and trailer under control; (c) the failure to keep a proper lookout; (d) operating said tractor and trailer at a speed in excess of fifty miles per hour; (e) not driving said tractor and trailer at a careful and prudent speed under the conditions then existing; (f) failing at the time and place of said accident to use a distribution of light, or composite beam directed high enough and of sufficient intensity to reveal persons and vehicles at a safe distance in advance of the vehicle which the plaintiff Laverne Carrington was then and there driving. The plaintiffs by reply put in issue all the allegations of negligence contained in Illingworth's counterclaim.

In the action brought by Kenneth C. Koch, the complaint charged Illingworth with the same acts of negligence as alleged in the complaint of Carrington and Industrial Molasses Corporation, and in turn Illingworth by his answer denied all acts of negligence.

As the two actions grew out of the same accident, the court consolidated them for the purpose of trial and they were tried to the court and a jury on instructions to which certain exceptions hereinafter to be noted were saved by Illingworth, appellant herein. The jury returned a verdict in favor of Kenneth C. Koch and against Illingworth, and also returned a verdict against appellant on his counterclaim in the action brought by Carrington and Industrial Molasses Corporation. In due course the court entered judgments pursuant to these verdicts. Appellant moved for a new trial in each of the cases, which the court denied. Illingworth did not prosecute his appeal from the judgment in favor of Kenneth C. Koch, but settled same.

From the judgment in favor of appellees on his counterclaim appellant seeks reversal on the ground that the court erred in the following particulars: (1) the trial court erred in refusing to give an instruction of Section 321.415, Code of Iowa (1954), as amended, I.C.A.; (2) the trial court erred in submitting a specification of negligence based solely on negative testimony; (3) the trial court erred in refusing to strike that portion of the testimony of the witness Hummel which was based on hearsay; (4) the trial court erred in submitting Instruction No. 12 to the jury; (5) the trial court erred in failing to give an instruction on disabled vehicles; (6) the trial court erred in submitting Instruction No. 13 to the jury.

It will be observed that the alleged errors complained of are errors in giving or refusing to give instructions or alleged errors in ruling on the admissibility of evidence. There is no challenge to the sufficiency of the evidence to sustain the verdict on which the court entered judgment dismissing appellant's counterclaim on its merits. The court instructed the jury in great detail, the instructions being numbered from 1 to 23, both inclusive. Appellant challenges only three of these instructions; to wit, Instruction No. 11, Instruction No. 12, and Instruction No. 13. He also complains that the court erred in refusing two instructions requested by him.

We have given careful consideration to all the exceptions now urged to the court's instructions and in doing so have considered the instructions as a whole with meticulous care and think they properly presented the issues to the jury and contained...