Johnson v. Svoboda
| Decision Date | 21 December 1977 |
| Docket Number | No. 59536,59536 |
| Citation | 260 N.W.2d 530 |
| Parties | James W. JOHNSON, Individually and as natural father of Jesse W. Johnson, Appellant, v. Richard Lee SVOBODA, Appellee. Jane JOHNSON, Administrator of the Estate of Jesse W. Johnson, Deceased, Appellant, v. Richard Lee SVOBODA, Appellee. |
| Court | Iowa Supreme Court |
Shea, Jackson & Irvine, Cedar Rapids, for appellants.
Wadsworth, Elderkin, Pirnie & Von Lackum by D. M. Elderkin and David A. Elderkin, Cedar Rapids, for appellee.
Heard by MOORE, C. J., and LeGRAND, REES, UHLENHOPP and McCORMICK, JJ.
This appeal involves actions by a parent and a personal representative for damages arising from the death of a five-year-old child. The parties waived a jury and tried the actions to the trial court, which found for defendant Richard Lee Svoboda.
Svoboda drove a school bus east on a flat, straight, two-lane blacktop road in Cedar Rapids, Iowa. He stopped at Turner's Lane. Four schoolchildren on the bus lived south of the road on that lane and two children lived north of the road on a shorter lane. The door on the bus was on the right side at the front.
The four Turner's Lane children disembarked and started directly down their lane. The other two children, Jimmy Johnson, 7 and Jesse W. Johnson, 5, also got out. They started around the front of the bus toward their lane, which was a little to the rear of the bus.
From that point the evidence introduced by the two sides is diametrically opposed. According to Jimmy Johnson, he and his brother Jesse waited at the left-front corner of the bus for an approaching yellow Toyota to stop. The bus then started up, Jimmy escaped, but the bus struck and ran over Jesse. Jay Wallander, who testified he approached in the opposite lane of traffic, corroborated Jimmy's testimony.
On the other hand, the trial court in its findings upheld the version of the accident given in Svoboda's evidence, as follows.
Kim Tyrrell, another pupil, sat behind the bus driver. She testified:
Q. Did you see where Jesse and Jimmy went when they got off the bus? A. Yes.
Q. And where did they go? A. They went around the bus to their house. . . .
Q. Where was their house? Was it across the road? A. Yes.
Q. Okay, did Jesse have anything in his hand at this time? A. Yes.
Q. What was that? A. Paper.
Q. And did you see the two boys get fully across the road? A. Yes.
Q. And what, if anything, happened then? A. A piece of paper blew out of his hand, Jesse's hand.
Q. This is a piece of paper he was holding at the time? A. Yes.
Q. And what happened to the piece of paper? A. It blew across the street.
Q. And what, if anything, did Jesse do then? A. He went chasing after it.
Q. And did he come back across the street? A. I don't remember.
Q. What happened after this? A. He got ran over.
Q. How, did the bus driver pull forward with the bus? A. Yes.
Q. Did you feel anything when the bus went forward? A. A bump.
Q. And where did you feel the bump in the bus? A. At the rear.
She testified more specifically as to Jesse's location before he ran back:
Q. Where did you see Jesse? A. He was standing right here.
Q. On the porch? A. By it. . . .
Q. And then you saw him run back, is that right? A. Yes. . . .
Q. Did you see Jesse by his porch? A. Yes, by it. . . .
Q. And then the bus had waited there until he got to the porch, is that right? A. Yes.
Gary Albertson lived on Turner's Lane. He testified he was standing by his house with workmen, and further:
Q. Did you observe the two Johnson boys getting off the bus? A. Yes, I did.
Q. And where did they go when they got off the bus? A. They got off the bus well, my child and the Turner children continued down the lane and they walked around the front of the school bus.
Q. Who went across the front of the school bus? A. The two Johnson children.
Q. And where did they go then? A. After they got around the front of the school bus I can't see them until they get clear across the road, almost clear across the road.
Q. So you lost sight of them at that time? A. So I lost sight of them at that time.
Q. Did you see them again after that? A. Yes.
Q. And where were they at this time? A. They were either in their yard or in the near vicinity of it. They should have been off the traveled portion of the roadway by then. . . .
Q. Did you see both boys across the roadway? A. Yes.
Q. And what did you see then? A. Well, at that time I turned to talk to the two gentlemen that were working on my house. . . .
Q. Now, did you at any time see any school paper anywhere near the scene of the accident? A. After the accident had happened I saw one laying on the lane.
Q. All right. A. On the south side of the school bus.
Deanna Glover was another pupil on the bus. She sat over the back wheel. She testified:
Q. And do you remember seeing Jesse and Jimmy Johnson on that day get off the bus? A. Yes. . . .
Q. And where did they go when they got off the bus? A. They went across the street. . . .
Q. Did you see them cross the road over to the other side? A. Yes.
Q. And how far over were they, can you recall? Were they right on the roadway, shoulder, going up along the edge? A. They were on the shoulder.
Q. Which way were they heading? A. Toward the house.
Defendant Svoboda testified he originally turned on his yellow flashers, came to a stop at Turner's Lane, checked for cars, and pulled out the stop sign which turns on the red flashers. He had left and right rear-view mirrors in which he could see down both sides of the bus, plus a convex mirror forward which permitted him to check for pupils walking across the front of the bus.
Svoboda opened the door and the children got off. He testified:
Q. All right, did the Johnson boys get off first or last? A. They got off near the front, first or second or third.
Q. Did you watch them after they got off? A. Yes, I did.
Q. And where did they go? A. They sort of trotted around the front of the bus and last time I observed them they were going by the left front corner of the bus, starting across the other lane of traffic.
Q. And you watched them until they got to that point? A. Yes.
Q. Were they walking or running at this time? A. They were sort of trotting. They were moving right along.
Q. Now, did you then look for the other children that you had on? A. Yes, I did. . . .
Q. All right, did you then look back to see whether the Johnson boys were across the road? A. Yes, I did.
Q. And what did you see then? A. I looked in the mirror to check across the front of the bus and I couldn't see them. I looked out to the left, I couldn't see them. I looked down the left rear mirror and I couldn't see them.
Q. Okay, did you at that time check for traffic? A. Yes, I did. . . .
Q. Now, as you started forward with the bus, what happened? A. I moved forward about two lengths, two-thirds of a bus length and I felt the left rear portion of the bus raise up. As soon as that happened I stopped, put the bus in neutral, put on the emergency brake, told the children to stay in the bus, then I ran around the back. . . .
Q. Well, I am asking you what point on the roadway did they what point were the Johnson boys with reference to the mid-center line of the roadway were they when you last saw them? A. Just north of the center line.
In the occurrence, Jesse Johnson was run over by the bus and killed.
In the present wrongful death actions, the trial court acting as fact-finder found that the accident happened as testified by the defense witnesses, with Jesse run over by the left rear dual wheels, and that plaintiffs did not prove by a preponderance of the evidence that Svoboda was negligent. The court therefore dismissed plaintiffs' petitions. Plaintiffs appealed.
In their appeal, plaintiffs present alternative contentions: (1) the trial court's finding is not supported by substantial evidence that Jesse crossed over the road to his yard and then chased a paper back to the bus, but (2) conceding such finding is supported by substantial evidence, the court nevertheless erred in finding plaintiffs did not prove by a preponderance of the evidence that Svoboda was negligent. In deciding the case we assume arguendo that if Svoboda was negligent, his negligence was a legal cause of Jesse's death. See Restatement, Torts 2d § 281(c).
I. Substantial Evidence? The case was tried by ordinary proceedings and we do not review it de novo; the trial court's fact findings bind us if supported by substantial evidence. Rule 14(f)(1), Rules of Appellate Procedure; Grefe v. Ross, 231 N.W.2d 863 (Iowa).
From the testimony we have quoted, the trial court's finding that Jesse went to his yard and then chased a paper back to the bus manifestly has substantial evidentiary support. Plaintiffs argue with vigor that the court should have found the other way, but their assertions are in the nature of jury argument. We do not find merit in their first contention.
II. Svoboda Negligent? As to plaintiffs' contention that Svoboda was negligent even if Jesse was in his yard and then ran back to the side of the bus, two factors must be borne in mind. One is that we are not dealing with a sustained motion for directed verdict against plaintiffs (motion to dismiss when no jury), but rather with a fact finding on the merits. The trial court did not sustain a defense motion to throw out plaintiffs' case for want of substantial evidence of negligence. Instead, the court heard and decided the negligence question as a jury would do, and then found that plaintiffs had not established negligence as a jury could do.
The other factor is that in this setting, plaintiffs cannot prevail merely by showing substantial evidence in the record of negligence on Svoboda's part; they must go farther and show that such evidence is so overwhelming that it establishes Svoboda's negligence as a matter of law. ...
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