Kaffenberger v. Holle

• Decision Date: 07 May 1946
• Docket Number: 46845.
• Citation: 22 N.W.2d 804,237 Iowa 542
• Parties: KAFFENBERGER v. HOLLE.
• Court: Iowa Supreme Court

22 N.W.2d 804

237 Iowa 542

KAFFENBERGER v. HOLLE.

No. 46845.

Supreme Court of Iowa

May 7, 1946

M L. Sutton, of Clinton, for appellant.

E C. Halbach, of Clinton, for appellee.

GARFIELD Justice.

Defendant contends the evidence of his negligence, proximate cause and plaintiff's freedom from contributory negligence is insufficient to have warranted submission to the jury and that since defendant's motion for directed verdict at the close of the evidence was erroneously denied, his motion for judgment notwithstanding verdict should have been sustained. Defendant relies upon Rule 243(b), Rules of Civil Procedure which provides: 'If the movant was entitled to have a verdict directed for him at the close of all the evidence and moved therefor, and the jury did not return such verdict, the Court may then either grant a new trial or enter judgment as though it had directed a verdict for the movant.'

Defendant did not seek a new trial in the court below and now asserts he does not want a new trial but seeks only a judgment notwithstanding verdict 'upon the ground set out in Rule 243.' Defendant assumes that if his motion to direct a verdict should have been sustained, he is entitled under Rule 243(b), as a matter of right, to judgment notwithstanding verdict and that the trial court would have had no discretion to grant a new trial.

We think the case was for the jury. We will briefly review the evidence and, pursuant to our duty, in the light most favorable to plaintiff.

On the evening of August 9, 1941, plaintiff and his wife accompanied defendant and his wife in defendant's new Dodge sedan from their homes in Clinton to the neighboring village of Low Moor to attend a fireman's jubilee. They arrived after dark and defendant attempted to park his car in a vacant lot adjoining the main street. Defendant's attention was at least partly distracted by some children 'and he didn't just watch where he was driving, so he drove over on this pile of rocks and the car stalled.' Some onlookers informed the occupants of the car that it was on a pile of rocks.

Defendant testified, 'my wife stated there were some rocks there, and at the same time it seemed like I was on something. So Mr. Kaffenberger (plaintiff) * * * and I got out of the left side and walked to the back of the car and looked at it. * * * There was a pile of rocks there.' On cross-examination defendant said he saw rocks around the car, the rear end was near the pile of rocks but that he couldn't tell whether rocks were under the wheel. Defendant's wife testified, 'he did go a little bit too far off the road and just as he got over the sidewalk I noticed these rocks and said 'There are some rocks' and just about at the same time he was on them and the car stopped.'

Plaintiff said, 'Holle (defendant) and I got out and looked and saw there were some rocks under either the axle or spare tire carrier or something that held the right wheel off the ground and couldn't get any traction.' Plaintiff and defendant took hold of the right rear fender and rear bumper and tried to push the car back and forth. After two or three such attempts the car had not moved. Defendant then announced 'I'll get this thing off of there.' Plaintiff and his wife both testified plaintiff asked defendant what he intended to do, defendant made no answer, got in the car, started the motor, the motor 'roared,' the car 'shot' ahead, a rock was thrown out back of the car which struck plaintiff in the leg and broke it.

Defendant testified: 'I left Mr. Kaffenberger standing in back of the car. I just walked away from him and went up to the left side of the car and got in and turned the key on and started the car and went ahead. I went ahead about three car lengths and stopped and there was a boy running to us and said, 'The fellow that's with you is hurt.''

The testimony is without dispute that defendant gave no warning of his intention to start his car, unless his statement 'I'll get this thing off of there' might be considered such warning. Defendant's wife testified, 'both Mr. Kaffenberger and Mr. Holle got out and went to the back and talked about it. * * * a short time later Mr. Holle came back and got in the car. He didn't say anything to us about what he was going to do either.' A bystander, Mrs. Enright, a witness for defendant, said on cross-examination she did not know and nothing was said that anyone was going to start the car.

Plaintiff testified: 'I did not know just what was going to happen, and didn't know whether he was going to get the switch key and get the jack out, or just what was going to take place there until I heard the motor, and the first thing I knew the car went forward and I jumped back and I couldn't get out of the way and a rock caught me between the knee and the ankle and the car shot forward * * *.

'Q. Had you had any warning he was going to start the car? A. No, sir. * * * There was nothing said and I did not know what he was going to do. He made no statement and didn't do no talking.

'Q. At the time you may state whether or no Mr. Holle appeared to be in angry or--A. Yes, he was quite mad.'

Plaintiff testified the keys to the car were in the ignition switch and the trunk to the car was locked.

Plaintiff said he was four or five feet back of the car when he was injured. 'I had stepped away from it because I didn't know just what he was going to do. * * * I tried to get away, though, as soon as I heard the motor roar.'

There were men, women and children about five or six feet back of plaintiff when he was struck. One of the women was directly back of plaintiff and testified she thought she would have been struck by the rock which 'flew out from under' the car if it had not struck plaintiff. Plaintiff said there were grown people standing, talking, and children running up and down the sidewalk, back of him. A car belonging to Horn was parked on the street side of the sidewalk to the west of defendant's car, which was headed east in the parking lot. Horn testified, 'rocks were flying around there--little pieces of rock were hitting my car, * * *.'

'Q. Was it rocks from this car that had parked there, * * *? A. Rocks from that car. They were only small. I could only hear some of them hit the right front fender of my car * * * The rocks were from the east and I was on the west side of the sidewalk.

'Q. They were broken pieces of rock? A. Yes.'

Otto, a bystander who helped push on defendant's car, testified for defendant, 'He (plaintiff) was right behind the left rear wheel and helped push and the wheel picked up a rock and hit him in the leg and broke his leg. It was a rock about 20 to 25 pounds that hit the man, I should judge.' Plaintiff denied he or anyone else was then pushing on the car and maintained he had stepped back 4 or 5 feet when he was injured. This is consistent with the testimony of defendant's wife that the car seemed to go off on its own power.

It is apparent there is substantial evidence that: defendant was fully aware his car stalled on the pile of rocks and one or more rocks were either under or near one of the rear wheels; he knew plaintiff and several bystanders were in the rear of the car; defendant started his motor impatiently while he was angry, without giving timely warning of his intention so to do, even though plaintiff had inquired what he intended to do. From the testimony that the motor 'roared,' the car 'shot' ahead and rocks were forcibly thrown a considerable distance to the rear, it may fairly be inferred that defendant suddenly applied more power than he should have applied, in the exercise of ordinary care under the circumstances, and that defendant's failure to give warning and to use due care in starting his car caused plaintiff's injury.

Defendant argues that a reasonably prudent person would not have foreseen any danger in applying the power of the car. Reliance is placed on this answer of plaintiff on cross-examination:

'Q. Did you feel that if he was to apply power to his rear wheels there was danger of a rock being thrown out? A. I didn't think a rock would come out, no, sir.'

We may assume, without deciding, that danger was not reasonably to have been foreseen from the mere application of power in the ordinary way. Here, however, there is evidence that defendant suddenly applied an extraordinary amount of power which caused the motor to roar, the wheels to spin, the car to shoot forward and rocks to be forcibly thrown against a car on the opposite side of the sidewalk. We cannot say as a matter of law from the quoted...