Isaacs v. Bruce
| Decision Date | 03 April 1934 |
| Docket Number | No. 42385.,42385. |
| Citation | 254 N.W. 57,218 Iowa 759 |
| Parties | ISAACS v. BRUCE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cerro Gordo County; Joseph J. Clark, Judge.
This is an action brought by the plaintiff to recover damages from the defendant for injuries sustained in an automobile accident. There was a trial to a jury, which returned a verdict for the plaintiff, and the defendant appeals.
Reversed.
Senneff, Bliss & Senneff, of Mason City, and Miller, Miller & Miller, of Des Moines, for appellant.
Burt J. Thompson and Dudley Weible, both of Forest City, and Thomas & Loth, of Fort Dodge, for appellee.
On December 24, 1931, at about 10:30 o'clock p. m., Margaret Isaacs was injured when the Packard automobile in which she was riding collided with a Ford truck at the intersection of paved highway No. 106, an east and west thoroughfare, with a graveled road extending in a northerly and southerly direction, near the west boundary of Mason City.
At the time of the accident, Bruce Thompson, Raymond Ellis, Janice Thompson, and Margaret Isaacs were riding in the Packard car eastward on the south side of the east and west pavement. Raymond Ellis was driving the Packard automobile. Janice Thompson was in the front seat with him. Bruce Thompson was riding on the right side of the back seat, and Margaret Isaacs was sitting on the left side of the back seat as the Packard car approached the scene of the accident. Wells Bruce was driving a Ford truck, belonging to his father, George Bruce, the defendant-appellant, eastward on the paved highway ahead of the on-coming Packard automobile. Riding at the time with Wells Bruce in the Ford truck were his brother, Floyd Bruce, and his cousin, Doris Bruce. The driver, Wells Bruce, was on the left side of the seat in the truck. Doris Bruce was in the middle of the seat, and Floyd Bruce was on the right-hand side thereof.
When Wells Bruce approached the graveled highway before mentioned, he desired to turn thereon from the paved road. This necessitatedthat he turn to the left across the paved road. Before turning to the left, Wells Bruce, the driver of the truck, looked backward and saw the Packard car approaching. At about this time, Wells Bruce slowed down the truck and turned it partly onto the shoulder at the south of the pavement. About half of the Ford truck was on the shoulder and the other half was on the pavement. Apparently Raymond Ellis, the driver of the Packard car, did not see the truck on the highway ahead until Bruce Thompson, who was riding in the back seat, noticed it and called the driver's attention thereto. That was immediately before the collision. After being thus warned, Raymond Ellis, the driver of the Packard car, put on the brakes and swerved his automobile to the left. The front part of the Packard car missed the truck, but the back part of the Packard struck the left hind corner of the truck. As a result of the collision, Margaret Isaacs received severe and permanent injuries.
So, on April 1, 1932, N. E. Isaacs, the next friend of Margaret Isaacs, a minor, the plaintiff-appellee, commenced this action against George Bruce, the owner of the truck, on the theory that he had consented to the use of the truck by his son, Wells Bruce. Subsequently the cause was tried to a jury, which returned a verdict in favor of the appellee, and judgment was entered by the district court accordingly. From that judgment, the appellant appeals. On the appeal many propositions are argued by the appellant. Only a part of them, however, will be considered.
I. It is first argued by the appellant that the district court erred in not sustaining his motion for a directed verdict and his motion to withdraw certain issues from the jury. In his petition, the appellee charged three grounds of negligence. These grounds were: First, that Wells Bruce, the driver of the Ford truck, in stopping, slowed down without giving any warning signal thereof; second, that Wells Bruce, the operator of the truck, drove the same upon public highways of the state without carrying or displaying any rear tail-light or reflectors; and, third, that Wells Bruce operated the “truck without complying with the provisions of section 5105-c19 of the 1931 Code, by not having on the corners of the body of said truck glass reflectors which reflected the light from the rays of approaching motor vehicles and clearly defined the limits of the body of the truck.” Each ground of negligence was submitted to the jury by the district court.
[1] The appellant argues that there is no substantial evidence in the record to sustain any of the grounds of negligence above enumerated. This contention of the appellant will now be considered as it especially applies to the first ground of negligence, to wit, that Wells Bruce, the driver of the Ford truck, in stopping, slowed down without giving any warning signal of his intention so to do. Section 5032 of the 1931 Code provides: “The operator of a motor vehicle shall, before stopping, turning, or changing the course of such vehicle, first see that there is sufficient space to make such movement in safety and shall give a visible or audible signal to the crossing officer, if there be such, or to the drivers of vehicles following, of his intention to make such a movement, by raising and extending the hand or by a proper signal or device indicating with it the direction in which he wishes to turn.” See, also, Holub v. Fitzgerald, 214 Iowa, 857, loc. cit. 861, 243 N. W. 575;Dillon v. Diamond Products Co., 215 Iowa, 440, 245 N. W. 725.
On the theory of the statute above quoted, the district court submitted to the jury the first ground of negligence alleged by the appellee, as previously shown. But it is argued by the appellant that the district court erred in submitting this issue to the jury because there is no substantial evidence in the record to sustain the charge that his son, Wells Bruce, the driver of the Ford truck, did not give a visible or audible signal to the driver of the Packard car of his intention to stop or turn. Likewise, it is contended by the appellant that even if the evidence sustained the fact that the driver of the Ford truck did not give the statutory signal of his intention to stop, yet there is nothing in the record to indicate that such failure to signal was the proximate cause of the accident.
A careful study of the record compels us to conclude that there is no substantial evidence on which to sustain this ground of negligence. Consequently it should not have been submitted to the jury. Raymond Ellis and his guests in the Packard automobile did not see the Ford truck until an instant before the collision. Accordingly the occupants of the Packard automobile did not know whether or not Wells Bruce, the driver of the Ford truck, gave a signal of his intention to stop. That is said upon the theory that the record discloses that Wells Bruce, the driver of the Ford truck, intended to stop. He, so far as the record shows, had not stopped the Ford truck. It does not definitely appear in the record whether Wells Bruce intended to bring the Ford truck to a stop. Assuming, however, that Wells Bruce intended to stop the Ford truck, there is nothing in the record to indicate that he failed to give the statutory signal of his intention so to do.
[2] Floyd Bruce, who was riding in the Ford truck with Doris Bruce and Wells Bruce, the driver thereof, testified that he did not see or hear his brother Wells give such signal; but Floyd did not testify that the signal was not given. Therefore, there being no substantial evidence in the record to sustain this ground of negligence, the district court should not have submitted the issue to the jury. Simmons v. Chicago, R. I. & P. Ry. Co. (Iowa) 252 N. W. 516;Graves v. Chicago, R. I. & P. Ry. Co., 207 Iowa, 30, 222 N. W. 344;Gross v. Humke Sanitary Bakery, 209 Iowa, 40, 227 N. W. 620;Cresswell v. Wainwright, 154 Iowa, 167, 134 N. W. 594;Stout v. Chicago, R. I. & P. Ry. Co., 198 Iowa, 1017, 200 N. W. 596;Douda v. Chicago, R. I. & P. Ry. Co., 141 Iowa, 82, 119 N. W. 272;Veith v. Cassidy, 201 Iowa, 376, 207 N. W. 328. If, when a jury returned a verdict under an allegation of the petition, the trial court must set it aside because not sustained by the evidence, the issue should not be submitted to the jury in the first place. Jacob Meyer & Bros. v. Houck, 85 Iowa, 319, 52 N. W. 235;Ellis v. Oliphant, 159 Iowa, 514, 141 N. W. 415;Russell v. John Clemens & Co., 196 Iowa, 1121, 195 N. W. 1009;Buser v. Morrison, 212 Iowa, 31, 233 N. W. 28.
Moreover, there is nothing in the record to indicate that the failure of Wells Bruce to give the statutory signal of his intention to stop the truck was the proximate cause of the collision with the on-coming Packard. Wells Bruce, as...
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Howie v. Ryder & McGloughlin
...no warning signal given by the truck driver. This would be insufficient to base a submission of that question to the jury. Isaacs v. Bruce, 218 Iowa 759, 254 N.W. 57. In that case the district court submitted to the jury the issue as to whether or not a truck driver had given a signal showi......