Karr v. Samuelson, Inc.
| Decision Date | 07 April 1970 |
| Docket Number | No. 53809,53809 |
| Citation | 176 N.W.2d 204 |
| Parties | Richard KARR, By Lloyd Karr, His Father and Next Friend, Appellant, v. SAMUELSON, INC., Norman Richardson, and Betty Richardson, Appellees. Lloyd KARR, Appellant, v. SAMUELSON, INC., Norman Richardson, and Betty Richardson, Appellees. |
| Court | Iowa Supreme Court |
Lundy, Butler, Wilson & Hall, Eldora, for appellants.
Lund & Lund, Webster City, for appellee Samuelson, Inc.
Carroll Wood, Webster City, for appellees Norman Richardson and Betty Richardson.
This case combines actions for personal injuries by the injured minor and his father seeking general damages and damages for medical expenses. The cases are treated in solido. Defendant Samuelson, Inc. is sued as owner of the other vehicle claimed to be involved in the automobile mishap. The Richardsons are both sued as persons having the exclusive management and control of the other car. The case was submitted to the jury on interrogatories. The answers to interrogatories dictated a finding for defendants. After overruling a motion for new trial, the court entered judgment as indicated. Plaintiffs appeal. We remand.
The case has many unusual aspects, most of them confusing. It is therefore essential to set forth the contentions of the contending parties in oversimplified form, without regard to order or manner of proof, in order to follow the evidence and arguments.
Plaintiff, Richard Karr, then age 16, claims he was driving north on a 22 foot concrete country highway known as White Fox Road at about 7:00 p.m., July 25, 1964; he was traveling about 50 miles per hour on a straight level stretch when defendants' 1958 blue Buick automobile came out of a field entrance on the side of the highway and turned in front of him, he drove to the right, the left side of plaintiffs' vehicle struck the right side of defendants' car, went out of control, crossed the highway, went into the ditch on the left side of the highway, rolled over, threw plaintiff and his passengers clear of the car and severely injured plaintiff.
Defendants contend Mrs. Richardson was driving north on the same highway at the same time and place, she was not driving a 1958 blue Buick but a 1955 green Buick, she did not turn onto the highway but had been there all along. She came from her home in Webster City and was going to her brother-in-law's house a short distance down the road. As she prepared to turn right into the drive she glanced in the rear vision mirror and saw plaintiffs' auto rolling over and over down the highway behind her. Her scream caused her husband to look back to see the same scene. Plaintiffs' auto never touched the Richardsons' car, the Richardsons were not involved in the accident in any way except they were in the vicinity preparing to turn into the driveway of their destination.
The dispute is therefore somewhat unusual in the divergence of claims not only of how the accident happened but what car or cars were involved and who was driving defendants' car. The specifications of negligence submitted were that defendants suddenly and without warning caused the car occupied by Richardsons to be placed in the path of plaintiffs' car, defendants drove at too slow a speed and failed to keep a proper lookout. Defendants contend there should have been a directed verdict on those issues and on proximate cause. Under this record if defendants are correct as to their right to a directed verdict there is merit in their position that the errors claimed by plaintiff are harmless. Thus, we first consider whether plaintiffs generated a case for the jury.
I. In considering the propriety of a ruling on motion for directed verdict we consider the evidence in the light most favorable to the party against whom the motion was made. Rule 344(f)(2), Rules of Civil Procedure. The rule is of particular importance here because there is a wealth of conflicting testimony as to every facet of the case, coming from both sides. If plaintiff generated a jury case, these conflicts are for the trier of the fact, otherwise not.
II. Plaintiffs' case consists of both direct and circumstantial evidence. Richard Karr and his two youthful passengers testified they left Webster City about 7:00 p.m., destined for the stock car races. As they proceeded north on White Fox Road there was nothing ahead of them traveling in their direction but another car was approaching from the oppsite direction. They were traveling about 50 miles per hour. Suddenly a car loomed in front of them. Plaintiff hit the brakes but remembers nothing thereafter until he fully regained consciousness in the hospital about a week later.
Richard Norman, plaintiffs' front seat passenger, told essentially the same story with the same subsequent loss of memory. The other passenger, Dan Morton, remembers nothing of the events immediately preceding or during the accident, back until his recollection of being at a Drive-In before starting the trip.
Phyllis Hilpipre was approaching the scene from the north. She saw the Karr vehicle south of her, approaching at about 50 miles per hour. There were no other vehicles between them. There was a dip between her location and the scene of the accident. She entered the dip and when she came out of it there was a blue car, which she later identified as the Richardson car, approaching from the south: Mrs. Hilpipre did not see the two cars come in contact at any time.
Mrs. Hilpipre subsequently examined both the blue Buick claimed by plaintiffs to have been in the accident and the green Buick claimed by defendants to be the car Mrs. Richardson was driving at the scene. Mrs. Hilpipre stated positively the Richardsons were not driving the green Buick as claimed. She is less positive of her identification of the blue Buick but stated the blue Buick shown to her at the home of plaintiff Lloyd Karr was the blue Buick driven by the Richardsons the night of the accident.
Mrs. Hilpipre stopped in the near vicinity of the accident, talked to Mr. Richardson who got out of his car from the right side and looked after the boys who were all lying in the ditch unconscious. Richardson said he would go call for help, got in behind the wheel of his automobile and left. Richardson later returned to the scene. He says he returned with his brother, in his brother's car. Plaintiffs claim Richardsons' black Chevrolet was at the scene immediately after he returned. The Richardson Buick was not returned to the scene. 1
Three highway patrolmen arrived at the scene. Officer Hogan testified he found a windshield practically intact in the east ditch. He placed it in the rear of the wrecked Karr Chevrolet. The operator of the wrecker said he looked into the back of the Karr automobile when he got it back to the salvage yard and saw a piece of glass in the back which was about the size of a windshield. A Mr. Miller, who was at the scene, also testified he saw the windshield in the east ditch.
The jury could find from the evidence that plaintiffs' car laid down skid marks starting just south of a field entrance; these skid marks started 38 feet south of a field entrance to the highway, were all on the east side of the highway, angled further east to within one foot of the edge and ended with three jump spaces where there were no markings for eight feet and then 14 inch markings. Lighter tire marks then angled west across the highway into the ditch where substantial gouging marks were noted; the Chevrolet then went along the ditch and back out to where the car came to rest. At the field entry Mr. Karr noticed two fresh-appearing tire marks, about 18 inches or two feet long, coming out of the entrance.
After Mr. Karr was told about the windshield found in the ditch he commenced a search for the car from which it had come. Much of the record is taken up with the circumstances of this search. The jury could find the windshield came from a blue 1958 Buick formerly owned by Samuelson's, Inc. Mr. Samuelson, sole owner of Samuelson's, Inc., is Betty Richardson's father. She had driven the 1958 blue Buick from time to time but denied driving it that night. The car was sold to a car dealer in Minnesota after the accident and later purchased by Mr. Karr through a friend. There is also substantial evidence in the record to support a finding this car had been in a wreck, had paint on the right side which was identical to the paint on the Karr automobile and had been repaired.
Dr. Weiland, an expert on accident reconstruction testified at length. He had examined the scene of the accident, parts of the Chevrolet, the blue Buick and the pictures taken at the scene. He concluded the Chevrolet made contract with another object near the north end of its 100 foot skid mark and just before the 'jump marks' occurred. This contact caused the jump marks. The two vehicles disengaged and the Chevrolet went west across the highway into the ditch....
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