Kester v. Bruns, 66928

• Decision Date: 24 November 1982
• Docket Number: No. 66928,66928
• Parties: Thomas KESTER and Marilyn Kester, Appellants, v. Martin Thomas BRUNS, Appellee.
• Court: Iowa Supreme Court

Page 279

326 N.W.2d 279

Thomas KESTER and Marilyn Kester, Appellants, v. Martin Thomas BRUNS, Appellee.

No. 66928.

Supreme Court of Iowa.

Nov. 24, 1982.

Denver D. Dillard and Marshall G. Hardesty, Jr., Cedar Rapids, for appellants.

Gregory M. Lederer and Robert M. Jilek of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for appellee.

Considered by LeGRAND, P.J., and UHLENHOPP, HARRIS, McCORMICK and McGIVERIN, JJ.

McCORMICK, Justice.

This case involves challenges to trial court rulings on motions for mistrial and new trial and objections to instructions in a negligence action arising from a car-pedestrian accident. We find no merit in the challenges and therefore affirm the trial court.

Plaintiffs Thomas and Marilyn Kester, husband and wife, were driving east on Blairs Ferry Road in Cedar Rapids, in the early morning of January 8, 1977, when their car stalled in the extreme right lane of the four-lane street. It was cold with blowing snow, and the street was icy. A motorist stopped to assist them. He and Thomas Kester attempted to push the Kester automobile, steered by Marilyn Kester, across the left three lanes of the street onto the opposite shoulder. The men were unable to push the car up an incline in the two westbound lanes. They left the car straddling those lanes and walked to the shoulder.

A westbound automobile approached the scene and was unable to stop. It struck the Kester automobile and spun it around 180? , moving it partially over the centerline. Thomas Kester helped his wife from the car to the side of the road and then, after a short delay, went back to the car apparently to retrieve a pool cue. Just as he started to open the passenger side door, a westbound automobile driven by defendant Martin Thomas Bruns came upon the scene and struck and severely injured Mr. Kester.

In this action plaintiffs alleged Thomas Kester's injuries were caused by defendant's negligence. Thomas asked damages for the injuries and Marilyn sought recovery for loss of consortium and emotional distress. Defendant asserted a defense of contributory negligence. After trial, the jury returned a verdict for defendant on both claims, and plaintiffs appealed. The questions relate to the court's refusal to grant a mistrial or new trial based on statements by defense counsel in opening statement and the court's rulings on instructions. Where plaintiffs' contentions on appeal differ from their objections at trial, we limit our consideration to the issues on which they preserved error at trial.

I. The opening statement. During his opening statement, defense counsel Robert M. Jilek referred to police investigation of the accident on at least two occasions. Once he said:

The police were out there from different jurisdictions--this is near Marion and Hiawatha and so forth--and did an investigation,--and they felt that Mr. Bruns was where he should be and Mr. Kester was where he should not have been and that Mr. Bruns did all he could to avoid the accident.

He also said:

I believe the evidence will show a tragedy of errors and fault by the plaintiffs, that the conclusion of the officers is correct, that Marty did all he could to avoid the accident, was where he should have been, Mr. Kester was where he should not have been.

Immediately following the opening statement, plaintiffs moved for mistrial based on the alleged impropriety in defense counsel's opening statement. The trial court overruled the motion. When the issue was raised again in plaintiffs' posttrial motion for new trial, the court found that the statements were improper but nonprejudicial and that the result would have been the same even if they had not been made. Plaintiffs contend the rulings were erroneous.

After the jury is sworn, each party is permitted to make an opening statement. Iowa R.Civ.P. 191 provides in relevant part:

(a) The party having the burden of proof on the whole action may briefly state his claim, and by what evidence he expects to prove it;

(b) The other party may similarly state his claim and evidence.

Under this rule, counsel should only tell the jury about evidence that counsel has a good faith belief will be offered and admissible.

The defense attorney should have known that police officers would not be permitted to express opinions on fault. See Grismore v. Consolidated Products Co., 232 Iowa 328, 361, 5 N.W.2d 646, 663 (1942). Yet the implication of counsel's statements was that the officers would testify the accident was Thomas Kester's fault and not defendant's. Actually, although invited by the court to make a proffer of any such opinion evidence out of the presence of the jury, counsel did not attempt to offer the officers' views. Defendant called only one officer, and that witness did not express any opinions concerning how the accident happened. It is clear that counsel was at least reckless in his opening statement in representing what would be shown through police testimony. We agree with the trial court that the remarks should not have been made.

In finding, however, that plaintiffs were not prejudiced by the remarks and that a different result was improbable even if they had not been made, the court exercised its discretion. See Rasmussen v. Thilges, 174 N.W.2d 384, 391 (Iowa 1970). Thus, unless the court abused its discretion in overruling the motions for mistrial and new trial on this ground, the improper statements do not require reversal. We are unable to say, under the whole record, that the trial court exceeded the bounds of fair discretion in its rulings. Therefore the rulings are conclusive on the issue.

II. The instructions. Plaintiffs have six areas of complaint about the instructions the court gave or refused to give. Five of them relate to the defense of contributory negligence, and one relates to a charge of negligence against defendant. The contributory negligence defense was submitted separately against each plaintiff. Defendant alleged in bar of Thomas Kester's personal injury claim that he was negligent in failing to maintain a proper lookout, in failing to yield to defendant's vehicle, and in failing to give warning of the presence of the stalled car. He alleged in bar of Marilyn Kester's loss of consortium and emotional distress claims that she was negligent in failing to give warning of the stalled car. Each plaintiff was accused of negligence separately. The jury was not authorized to impute the negligence of one plaintiff to the other.

A. Lookout. Plaintiffs objected to the court's refusal to tell the jury Thomas Kester did not have a duty to maintain a constant lookout for traffic when he went into the street to get his pool cue from the stalled car. The court did not instruct the jury that Thomas had a duty to maintain a constant lookout. It merely told the jury he had a duty to maintain the lookout of "an ordinarily reasonable and prudent person under the same or similar circumstances." The court also said: "It implies being watchful of the pedestrian's own movements in relation to oncoming vehicles and implies seeing oncoming vehicles which could have been seen in the exercise of reasonable care."

Plaintiffs are correct that a pedestrian does not, as a matter of law, have a duty of constant lookout for approaching vehicles. See Ackerman v. James, 200 N.W.2d 818, 826 (Iowa 1972) ("Although a pedestrian has a duty to keep a proper lookout and make use of all of his natural senses to discover the approach of an automobile and to avoid being struck, he is not required to keep a constant lookout and must only apprise the situation with respect to the dangerous approach of an automobile."). In particular facts, however, the trier of fact might find reasonable care required a constant lookout. The situation was sufficiently perilous in the present case that a jury might have made such a finding. In these circumstances it may have constituted a comment on the evidence, and an erroneous one at that, for the court to tell the jury Thomas did not have to maintain a constant lookout for traffic. The court did not err in refusing to so instruct.

B. The duty to warn. Plaintiffs also complain that the court erred in instructing about the duty of a person in control of a motor vehicle stopped on a roadway to give notice of the vehicle. They assert the court should not have instructed on their duty under section 321.395 to give notice of the presence of the car by interior or exterior lighting without also instructing on the exception in section 321.396 which excuses the warning when an accident extinguishes lights and the person erects a warning light at the earliest opportunity. The problem with plaintiffs' position is that while the evidence showed the Kester vehicle had no lights on, no evidence was adduced to show how or when they were extinguished. There was no evidentiary support for an instruction on the exception. See Henneman v. McCalla, 260 Iowa 60, 75, 148 N.W.2d 447, 456 (1967).

C. Marilyn Kester's separate duty. Plaintiffs also contend the duty could not apply to Marilyn Kester because the evidence did not show she owned the car. The statute applies, however, to a person in control of a stopped vehicle, and the person need not be the owner to be in control. The jury could find from the evidence that Marilyn had at least joint control of the vehicle during the relevant events. The court's ruling on the objection was correct.

Although plaintiffs also assert the instructions on section 321.395 were unduly repetitive, the repetitiveness is sufficiently accounted for by the necessity of applying the duty to the plaintiffs separately.

D. The rescue doctrine. Plaintiffs sought unsuccessfully to have the trial court instruct the jury on the rescue doctrine. In Leaders v. Dreher, 169 N.W.2d 570, 576 (Iowa 1969), this court approved the statement of the doctrine appearing in Restatement (Second) of Torts section 472 (1965):

It is not contributory negligence for a plaintiff to...