Kimmel v. Mitchell
| Decision Date | 20 June 1933 |
| Docket Number | 41520 |
| Parties | R. D. KIMMEL, Appellee, v. GEORGE E. MITCHELL et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk County Court.--JAMES DE LAND, Judge.
Appeal from judgment for damages for injuries to person and property through colliding with unlighted rear end of truck. The opinion states the facts.--Affirmed on condition.
Affirmed on condition.
H. E Miller, for appellants.
Strock Sloan & Herrick and D. Cole McMartin, for appellee.
On the night of March 24, 1931, defendant Mitchell was driving a truck on the paved road between Dallas Center and Des Moines. The truck ran out of gas and the driver turned it somewhat onto the shoulder of the road. Just how much it was driven onto the shoulder, and just what the driver did after stopping the truck, in the way of making the presence of the truck ascertainable by one approaching from the rear, is in dispute. In any event, the driver ultimately left the truck and started on foot for Dallas Center, to secure a supply of gasoline.
The headlights and green lights on the front of the truck were left turned on by the driver and were lighted at the time of the accident, but the truck had been turned at an angle, as it was driven onto the shoulder, and the headlights created a "patch of light" in the field to the south of the road. The driver testified that before leaving the truck he polished the tail-light of the truck, and that it was visible more than a block away. But an occupant of a car going in the opposite direction, that passed the truck just an instant before the accident occurred, testified that he looked back at the truck, and that there was no light on the rear end of the truck, and two witnesses testified that the single "reflector" on the rear end of the truck was covered with mud. One witness examined the tail-light, after the collision. He said that the tail-light was smashed, that he saw no glass on the ground from the tail-light, and that it looked like the bulb was missing entirely. There was evidence that the base of the bulb was in the tail-light socket.
There was a conflict in the evidence concerning the position of the truck. Some witnesses said the right front wheel of the truck was off the pavement, while at least one witness denied this. Likewise there was a conflict in the evidence as to whether the rear end of the truck extended beyond the center of the pavement. All witnesses agree that the truck was standing so that it angled toward the right.
Plaintiff was driving toward Des Moines. He states that his attention was attracted, just an instant before the collision, by the "patch of light" in the field, and that when he turned his eyes back to the road he observed the truck about 18 feet ahead of him; that he attempted to turn out to avoid colliding with it, but could not do so. Estimates of the speed of the plaintiff's car just before the accident range from 30 to 40 miles per hour, and plaintiff testified that he could have stopped his car, at the rate he was going, within 50 feet. He also stated that his headlights were in good condition and would show an object distinctly 75 or 100 feet ahead of him.
Plaintiff's car was quite completely demolished, and his claim for $ 220 for its destruction is sustained by the evidence. Plaintiff's age is not shown by the record. He received a cut over the right eye perhaps an inch or an inch and a quarter in length and half an inch deep. The little finger of the left hand was mashed and the nail grew black. His right knee was skinned. He testified at the time of the trial in October, 1931, that he had headaches almost constantly and that the right side of his scalp felt "like pins going through my scalp". He did not testify to any loss of earnings, nor was there evidence of the value of physician's services. He was treated, the night of the accident, in Dallas Center, where an artery that had been severed, was ligated and the wound bandaged. He was subsequently treated by another physician, who testified as follows:
The jury returned a verdict against both defendants for $ 2.350 upon which the judgment was rendered, from which this appeal is...
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