Kemp v. Creston Transfer Co., Civil Action No. 314.

Citation70 F. Supp. 521
Decision Date12 March 1947
Docket NumberCivil Action No. 314.
PartiesKEMP v. CRESTON TRANSFER CO. et al.
CourtUnited States District Courts. 8th Circuit. Northern District of Iowa

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Kenline, Roedell, Hoffman & Reynolds and E. J. Kean, all of Dubuque, Iowa, for plaintiff.

Comfort, Comfort & Irish, of Des Moines, Iowa, and O'Connor, Thomas & O'Connor, of Dubuque, Iowa, for defendant Creston Transfer Co.

Lane & Waterman, of Davenport, Iowa, for defendant Delbert Lambert.

GRAVEN, District Judge.

On motions for new trial in motor vehicle collision case. On April 20, 1945, on Highway No. 61, south and outside of the city limits of Dubuque, Iowa, a tractor-trailer unit of the freight-carrying type driven by the defendant Delbert Lambert collided with a passenger car driven by Lester Justman. Louis Kemp who was a passenger in the car driven by Lester Justman died as a result of injuries received in the collision. The defendant Creston Transfer Company was a lessee of the tractor-trailer unit. The plaintiff as administratrix of the estate of Louis Kemp brought this action in state court against Delbert Lambert and Creston Transfer Company to recover for his death. The case was removed to this court because of diversity of citizenship. A jury trial was had. The jury returned a verdict in the sum of $15,000 and judgment was entered against both defendants for that amount. The defendants have moved for a new trial on several grounds.

Highway No. 61 was a paved highway. The pavement was 18 feet in width, with the center marked by a black line. The collision took place around 6:00 o'clock P. M. It was still daylight at the time. The pavement at the time in question was damp from a light rain or drizzle. Lester Justman and Louis Kemp were painters residing in Dubuque, Iowa. They had been painting during the day on a premises further down the highway. They were on their way back to Dubuque at the time of the collision. The defendant Delbert Lambert had left Chicago in the morning of that day with a load of freight. He had discharged part of his load at Rockford, Illinois, and Dubuque, Iowa, and at the time in question had about a half a load of freight to be delivered at Davenport, Iowa, and Moline, Illinois. Delbert Lambert was on his way to Davenport, Iowa, at the time of the collision. The collision occurred between one-half and one-fourth miles outside of the city of Dubuque, Iowa. Highway No. 61 as it leaves Dubuque runs in a general north and south direction. At the particular point the highway ran down grade from what the defendant Delbert Lambert described as the "top of the cliff" and "top of the cliff or hill." The highway descended from the top of the cliff or hill by winding for a distance of a mile or two. In the area of the collision there were a number of curves. Just prior to the collision the defendant Delbert Lambert was descending from the top of the cliff or hill on the upper part of an S curve and Lester Justman was going up towards the top of the cliff or hill on the lower part of a S curve. The collision took place near the upper end of the lower part of the S curve. On the west side of the pavement near the point of collision was a shoulder about five feet in width; then a guard rail; and then a drop-off of 30 to 40 feet into what was described as a ravine. On the west side of the pavement near the point of collision there was a tree covered side of the cliff or hill coming up in the near proximity to the pavement. A deputy sheriff took photographs at the scene of the collision, which were in evidence. Both Delbert Lambert and Lester Justman survived the collision and testified as witnesses. The only other eyewitnesses to the collision were Mr. & Mrs. Clarance Manders who lived nearby and whose testimony corroborated that of Lester Justman. It was the testimony of Delbert Lambert that he was at all times on the right hand or west side of the center line of the pavement; that he was driving around thirty miles per hour and that he had the tractor-trailer unit under control; that the collision was occasioned by Lester Justman driving up the cliff or hill over on the west side of the center line of the pavement. Lester Justman testified that he first saw the tractor-trailer unit when it was traveling down hill about half way around the upper curve; that at the time it was over on the east side of the road and traveling at a speed of forty-five miles an hour and continued to travel on the east side of the road; that as Delbert Lambert approached the Justman car he made a quick sudden turn to the right; that the collision took place at or about the time that Delbert Lambert made a quick turn to the right. It appears that the Justman car collided with the east side of the trailer and slightly to the rear of the center of it.

Jurisdiction in this case being founded upon diversity of citizenship the law to be applied is the law of Iowa. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed 1188, 114 A.L.R. 1487.

It is well settled in Iowa that a passenger in a car neither owning, operating nor having control over the car in which he is riding does not have imputed to him the negligence of the driver of the car. In re Goretska's Estate, 1944, 234 Iowa 1080, 13 N.W.2d 432; White v. McVicker, 1933, 216 Iowa 90, 246 N.W. 385; Kuhn v. Kjose, 1933, 216 Iowa 36, 248 N.W. 230. While in collision cases the negligence of the driver of a car is not imputable to the passengers, yet the negligence of the driver becomes of importance on the question of sole proximate cause where a passenger sues the driver or owner of the other car. Greiner v. Hicks, 1941, 231 Iowa 141, 300 N.W. 727. In the present case the defendants by their answers pleaded that the negligence of Lester Justman was the sole proximate cause of the collision. Where a defendant pleads that the negligence of a third party is the sole proximate cause of an automobile mishap, the court may properly assign the burden of proving such defense to that defendant. Usher v. Stafford, 1939, 227 Iowa 443, 288 N.W. 432, 434; Johnson v. McVicker, 1933, 216 Iowa 654, 247 N.W. 488; Frideres v. Lowden, 1945, 235 Iowa 640, 17 N.W.2d 396. However, in the present case the Court placed the burden of proof as to proximate cause on the plaintiff. In the present case the Court first instructed on the duties of both Delbert Lambert and Lester Justman at the time and place in question. Then the Court in Instruction No. 10, instructed as follows:

"You are instructed that separate independent acts of negligence by different participants may combine to produce a single injury even though one of them alone by his act or acts of negligence might not have caused the injury. This is what is known in law as concurrent negligence; that is, the negligence of either concurs with the other so as to cause the injury. In such cases, each of the participants is regarded in law as having been the proximate cause of the injury even though neither alone was the sole cause of the injury.

"In the present case, if the negligence, if any, of Delbert Lambert, concurred with the negligence, if any, of Lester Justman so as to produce the injury, the negligence of Delbert Lambert, if any, would be regarded in law as the proximate cause of the collision even though it was not the sole cause of the collision. However, if you find that the sole cause of bringing about or producing the collision and without which the collision would not have occurred was the negligence of Lester Justman, then such negligence on the part of Lester Justman would constitute the sole proximate cause of the collision and your verdict should be for the defendants."

The defendants excepted to this instruction as follows:

"The defendants except to Instruction No. 10 for the reason that same should be enlarged to instruct the jury that the negligence, if any, of Delbert Lambert, could only be a proximate cause of the collision, if the collision would not have happened without the negligence of the said Delbert Lambert and the mere fact that said negligent act of Delbert Lambert and Lester Justman might have concurred to produce the injury is not sufficient to charge Delbert Lambert's negligence with being the proximate cause of said collision which resulted."

In the case of Faatz v. Sullivan, 1924, 199 Iowa 875, 881, 200 N.W. 321, 324, the court states: "But the court did not err in refusing to give the requested instruction in the form asked, because the second sentence thereof did not correctly state the law applicable to the case." It is the well settled law in Iowa that if the negligence of the operator of a motor vehicle concurs with the negligence of a third person in causing an automobile mishap, that such concurring negligence constitutes a proximate cause of the mishap even though it is not the sole cause. Dennis v. Merrill, 1934, 218 Iowa 1259, 257 N.W. 322; Kuhn v. Kjose, 1933, 216 Iowa 36, 248 N.W. 230; Johnson v. McVicker, 1933, 216 Iowa 654, 247 N.W. 488. The instruction requested by the defendants would have absolved the defendants from liability even though the negligence of Delbert Lambert concurred with the negligence of Lester Justman, which would be contrary to the rule laid down by the Iowa Supreme Court.

In Instruction No. 9 in the present case just preceding the instruction referred to, the Court instructed the jury (italics supplied): "By `proximate cause' as used in these instructions, is meant the direct and natural cause, unbroken by any other cause, and without which the collision could not have occurred, or the damage caused." In Instruction No. 11 the jury was instructed that in order for the plaintiff to recover it was necessary for her to establish by the greater weight or preponderance of the evidence that the negligence of Delbert Lambert "was the proximate cause of the collision with the motor vehicle driven by Lester Justman." In Instruction No. 21 the jury were instructed: "You are to consider all...

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