Jenkins v. Bierschenk

• Decision Date: 22 June 1964
• Docket Number: No. 17351.,17351.
• Citation: 333 F.2d 421
• Parties: Thomas L. JENKINS, Appellant, v. Melvin BIERSCHENK and Viola E. Bierschenk, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

333 F.2d 421 (1964)

Thomas L. JENKINS, Appellant, v. Melvin BIERSCHENK and Viola E. Bierschenk, Appellees.

No. 17351.

United States Court of Appeals Eighth Circuit.

June 22, 1964.

John D. Randall, Cedar Rapids, Iowa, made argument for the appellant and filed brief.

Ralph W. Gearhart, Cedar Rapids, Iowa, made argument and filed brief with Caryl Garberson, Shuttleworth & Ingersoll, Cedar Rapids, Iowa, for appellees.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

BLACKMUN, Circuit Judge.

Thomas L. Jenkins sustained injuries to his person and damage to his automobile when it and one owned by Melvin Bierschenk collided on a public highway west of Cedar Rapids, Iowa, in the late afternoon of August 27, 1960. Jenkins brought this diversity action against Bierschenk and his wife who, with permission, was driving the car at the time of the accident. The case was tried to the court without a jury. Judge Delehant rendered judgment for the defendant and filed a supporting memorandum which is not reported. The law of Iowa of course controls.

Many of the facts are not in issue. Jenkins, age 33, was driving his 1953 Plymouth from California, where he had worked as a physicist, to Ohio, where he was to assume an assistant professorship at Case Institute. He was alone. The weather was clear and the road was dry. The highway where the accident occurred ran east and west. It was 24 feet wide and afforded an unobstructed view. Jenkins was on his own side of the two lane highway.

Bierschenk was a Benton County, Iowa, farmer. Mrs. Bierschenk, with two of their children accompanying her, was going west. Her automobile, a 1955 Mercury with more than 79,000 miles on it, veered from its path in the north lane "almost a foot" to its right and then veered back southwesterly across the center line where its left front struck the left front of the Jenkins car in, as the trial court found, "the extreme south portion" of the latter's lane. Each vehicle at the time was traveling between 45 and 50 miles per hour, well under the posted limit. After the impact the Jenkins car came to rest on its side south of the pavement and well off the highway. The Bierschenk automobile stopped upright more than 100 feet west of Jenkins', facing west at the south edge of the pavement and with its right front wheel flared out at an angle.

The Bierschenks purchased their car new in 1955 from a Vinton, Iowa, dealer. It was used generally as a family vehicle driven by Mr. and Mrs. Bierschenk and by their son Dennis after he reached 16 in January 1958. Its use was a normal one but it saw service on gravel roads and two or three times a year at haying time it was driven into the field. Prior to August 27, 1960, the Mercury had been involved in accidents when Dennis was driving. Once it sustained damage to the front end; on another occasion it struck a pig; and at another time its rear was damaged when Dennis backed the Bierschenk pickup truck into it.

Bierschenk had his automobile serviced and repaired from time to time and greased about every 4,000 miles by the Vinton dealer. Prior to August 11, 1960, Bierschenk was aware that the car had developed a front wheel "shimmy" and substantial wear on the front tires. He purchased new tires for the front wheels. The service station operator who sold him the tires recommended that the wheels be realigned. The family at the time was contemplating a vacation trip to the Canadian border. Bierschenk took his car to the dealer on August 11. A charge of $40.69 for labor and materials was incurred. This work included, among other things, the alignment of the front end, replacement of tie rods, new spark plugs, a new ignition switch, adjustment of the carburation and the timing and checking the points and front door catches. The mechanic tested the car on the road after this work and found it to operate properly at that time.

The highway surface where the accident occurred was concrete with blacktop repair. There is evidence that it had deteriorated somewhat in a preceding winter. Near the north edge of the pavement, east of the impact site, was an egg-shaped depression. This was about one foot (north and south) by six inches (east and west) with a depth up to an inch and a half. In the photographs introduced in evidence this depression does not show and its site had to be marked.

Jenkins testified that as the Bierschenk car approached him he saw its right front drop "a few inches" and some dust or smoke there, just before it veered, first to the north and then to the south, into his lane. The two Bierschenk children who were passengers in the car said that they felt a jolt as they approached the plaintiff. Mrs. Bierschenk testified that "all of a sudden something went wrong with the car and I couldn't control it". The pavement at the collision area disclosed tire marks and gouges which the trial court found were "attributable to contact between the pavement and metallic portions of the vehicle's sub-structure".

The defense theory is that the right front lower ball joint on the Bierschenk vehicle had weakened from metal fatigue and had broken without notice to the Bierschenks; that this resulted in a failure in the car's steering mechanism; and that the court properly found and concluded that there was no negligence on the part of the Bierschenks.

Under Iowa law the plaintiff has the burden of establishing affirmatively that he is free from contributory negligence. Beezley v. Kleinholtz, 251 Iowa 133, 100 N.W.2d 105, 107 (1959); Northern Natural Gas Co. v. Roth Packing Co., 323 F.2d 922, 924 (8 Cir. 1963). This case presents the situation of a plaintiff driving on his half of a public highway at a speed which was reasonable under all the circumstances and yet sustaining personal injury and property damage from an opposing car in his lane. Although the defendants by their pleading denied the plaintiff's allegation of no contributory negligence on his part, there is nothing in this record which could support a conclusion of contributory negligence. The trial court held that the plaintiff had sustained his burden in this respect and the point is not before us on appeal. We therefore have a clear case of injury and damage to a plaintiff who was himself without fault. Our question thus is whether the defendants were without fault and the accident was an unavoidable one with no liability.

Judge Delehant treated separately, and with his customary careful and meticulous attention to detail, the plaintiff's allegations as to Mrs. Bierschenk's failure to yield half the highway, lack of control, improper lookout, and excessive speed. He found and concluded that there was no negligence as to any of these; that her car's digression was not due to any act or omission on her part or defect of which she or her husband should have been aware; that she had the vehicle under control until that control was lost through circumstances for which she was not accountable; that she maintained a proper lookout and was aware of Jenkins' approach; and that she was driving at a reasonable speed. The court answered the plaintiff's suggestions (a) as to Dennis' misfortunes with the car by finding that these did not impair its condition or safety; (b) as to the automobile's occasional farm use by observing that "no rough usage of the vehicle is shown by the evidence" and that a modern automobile is sturdily constructed; (c) as to Bierschenk's being remiss in regularity of maintenance service by noting that the evidence supported no such inference and showed service and repair "with reasonable frequency and regularity"; and (d) as to negligence in the work performed by the dealer on August 11 by holding there was nothing in the evidence which proved this or that the ball joint was then in such condition that a defect existed or could have been detected by a mechanic's reasonable inspection.

The court then reviewed the post-collision investigation of the Bierschenk automobile. This showed that there was a complete severance of the ball joint at the lower screw thread. The steel bolt had undergone a "typical steel fatigue failure" at some time prior to the collision and was no longer strong enough to withstand the stress to which it was subjected. He felt that the exact cause of the stress which precipitated the final rupture could not be declared with finality and that the defendants' suggestion that the passage of the wheel over the depression...