Kohler v. Sheffert

• Decision Date: 09 June 1959
• Docket Number: No. 49703,49703
• Citation: 250 Iowa 899,96 N.W.2d 911
• Parties: Kenneth L. KOHLER, Appellee, v. Joseph SHEFFERT, d/b/a Sheffert's Garage, Appellant, and Ellen Conaway, Defendant.
• Court: Iowa Supreme Court

Page 911

96 N.W.2d 911

250 Iowa 899

Kenneth L. KOHLER, Appellee, v. Joseph SHEFFERT, d/b/a Sheffert's Garage, Appellant, and Ellen Conaway, Defendant.

No. 49703.

Supreme Court of Iowa.

June 9, 1959.

Clewell, Cooney & Fuerste, Dubuque, for appellant.

O'Connor, Thomas, McDermott & Wright, Dubuque, and Hallagan, Irish & Burt, Des Moines, for defendant.

F. H. Becker and Kintzinger & Kintzinger, Dubuque, for appellee.

OLIVER, Justice.

This case involves an automobile collision in the intersection of Locust Street, a through street, and West Third Street, in Dubuque, Iowa, June 5, 1956, at 8:19 P.M. Both streets were paved. Plaintiff was driving his automobile north on Locust Street, across this intersection, when a nonoperating Ford automobile owned by Paul E. Conaway, ran, out of control, down a long hill on West Third Street, through a stop sign and into plaintiff's car, injuring plaintiff and damaging his automobile. Thereafter plaintiff instituted this action for damages, naming as defendants Joseph Sheffert, doing business as Sheffert's Garage, who started the Ford down the hill and Ellen Conaway, who occupied the driver's seat.

Trial to a jury resulted in judgment for plaintiff against both defendants. From this judgment defendant Sheffert only, has appealed. He assigns error to orders overruling his motions for directed verdict and for judgment notwithstanding verdict and his exceptions to instructions.

There is little dispute in the record. However, in determining the sufficiency of the evidence to require submission of the case to the jury, it will be considered in the light most favorable to plaintiff. Some time prior to the accident Mr. Conaway and others had been working on the engine of his 1941 Ford at a high school in a course in mechanics. Early in 1956 he joined the Marine Corps and left Dubuque. His wife, defendant Ellen Conaway, remained in Dubuque. In April an instructor returned the automobile from the school and parked it across the street from the Conaway apartment. He testified it was not working properly but the brakes were then working and he did not examine them. Mrs. Conaway was a licensed automobile driver with little experience. She engaged someone to move the Ford and park it directly in front of her apartment, placed a block behind a wheel and left it standing there, unused.

Subsequently Mr. Conaway planned to return. Mrs. Conaway telephoned appellant Sheffert about the car. She told him the starter would not turn the motor over, and engaged him to tow it to his automobile repair garage, check it over, and work on it if there was anything to be done. After a number of calls, appellant came to her apartment early in the evening of June 5, without his tow truck, which he explained was not then available, and without a helper. She handed him the keys to the Ford. He opened the door and pushed the starter button. The motor did not turn over. He tried the gear shift which was on the steering wheel. He did not check the brakes, although he knew the car had not been operated for two or three weeks.

He then told Mrs. Conaway he wanted to push the car to get it started and 'if she put the car in high gear and held the clutch in until I got the car up to about 15 miles an hour and released the clutch, that the car would start.' She told him she had never done that and didn't like the idea. However, she got into the Ford and 'did as he said.' He put the car in high gear and instructed her to turn the ignition on. With his car he pushed the Ford west one and one half blocks to Burch Street, where it stopped of its own accord, apparently when appellant's car stopped pushing it. Appellant testified: 'Then I decided to push her over Burch Street.' He directed her to steer the Ford around the corner to the left and they traveled one block south on Burch Street down a slight slope to West Third Street where the two cars again stopped. Appellant had pushed the Ford at a speed up to ten or fifteen miles per hour and Mrs. Conaway had engaged the clutch a number of times but the motor had not started. She had not tried to apply the brakes.

Appellant testified: 'She got in the car and steered it and did what I told her, at least up to West Third and Burch Street. I directed her as to what gear to put the car in and directed her to steer the car and how to steer it.'

As the Ford stood on Burch Street at the entrance to its intersection with West Third Street, appellant shouted to Mrs. Conaway to turn the corner to the left and park and he would take it from there. He testified he intended to take her home and pick up the Ford later. His car then pushed the Ford into the downsloping intersection and stopped. The Ford rolled ahead and Mrs. Conaway turned it to the left (east). This intersection is on a hill, down which West Third Street runs east to and past Bluff Street which is more than one third mile distant. From the center line of Burch Street to a point 100 feet east, the downgrade of West Third Street is 3.94 per cent, (which the city engineer testified is a medium grade), 10.17% for the next 307 feet (which he testified is normally a very steep grade), then 9.57% for 150 feet, 8.5% for 200 feet, 10.08% for 50 feet, 14.52% for 100 feet, 16.43% for 100 feet, 15% for 150 feet, 16.62% for 200 feet, 11.43% for 100 feet, and 8.87% for 250 feet to the west line of Bluff Street.

Mrs. Conaway testified that as she turned the Ford into West Third Street it was too far out in the street to park and when she was pulling over to the curbing, 'the car started to pick up momentum' and she applied the brakes and for the first time, 'discovered there wasn't any brakes and I just kept going.'

The curbing was high and the car was scraping it and was too close to jump over it. She tried to hit it and the car kept bouncing back. 'All I know I was scraping along the side on my route down the hill and I saw the stop sign below and I don't know how close I was to it but it gave me such a fright being the car was going such a fast rate of speed I didn't know what to do, so I tried to shift it and discovering that didn't do any good I guess I fainted. I came to after the car had come to a complete stop. I have no memory of crossing Bluff Street or of hitting the telephone pole between Bluff and Locust Street or of hitting the Kohler car.'

At the scene of the accident an officer tested the brakes of the Ford by pushing the brake pedal to the floor with his hand and found they were not then operating.

Plaintiff pleaded appellant assumed control of the 1941 Ford automobile for transportation to his garage and had full and exclusive charge thereof, that Mrs. Conaway acted as appellant's agent in operating it while he pushed it with his automobile, and that the two were jointly or severally negligent in various particulars, which negligence was the proximate cause of the collision. All these allegations were denied in appellant's answer. The specifications of negligence submitted to the jury were:

'a) For pushing an automobile not in operation to and onto the brink of a precipitous hill without checking or without knowing the condition of said automobile.

'b) By causing and knowingly permitting to be moved on a public street a vehicle which was in such unsafe condition as to endanger any person, and which did not contain those parts, or was not equipped at that time with equipment in proper condition and adjustment as required by law.

'c) By causing a motor vehicle in traveling upon a downgrade to coast with the gears of such vehicle in neutral.

'd) By operating a motor vehicle on a public highway which was not equipped with adequate brakes.

'e) By failure to stop at an intersection where a stop sign is placed requiring traffic to halt.

'f) By causing said automobile to be driven at an excessive rate of speed.

'g) By failing to have said car under control.

'h) By failing to keep a proper lookout.'

I. Appellant assigns error to orders of the court overruling his motion for directed verdict and for judgment notwithstanding verdict. He complains that plaintiff failed to prove: '(1) that the car brakes were defective when the pushing operation was started, and (2) that a check of the brake mechanism at or around that time would have revealed such defect.' He contends: 'These were vital links in the chain of proof of negligence-cause-damage.'

The record does not show this complaint was made in the trial court. The motion for directed verdict did not mention it. This motion stated merely, that the evidence failed to show appellant was guilty of any act or omission which was the proximate cause of the damage, that it would be the duty of the court to set aside any verdict for plaintiff, and that the cause of the damage was the acts and omissions of Mrs. Conaway when she had sole possession and control of the Ford, operated by her. However, we will assume, without so determining, that the motion for directed verdict was sufficient to permit consideration of this assigned error.

Section 321.430, subd. 1, Code of Iowa, 1954, (1958) I.C.A., provides that every motor vehicle when operated upon a highway shall be equipped with adequate brakes.

Code section 321.381, I.C.A., is a general statute relating to safety standards and regulations, which statute makes it a misdemeanor to move upon a highway a vehicle dangerous to any person or without parts and equipment in proper condition as required by the chapter.

It is the rule in this jurisdiction, with some exceptions not here material, that where the legislature has fixed a certain standard of care by traffic regulations, any violation of such safety statutes is negligence. This doctrine was clearly enunciated in the much cited case of Kisling v. Thierman, 214 Iowa 911, 915, 916, 243 N.W. 552, 554. Florke v. Peterson, 245 Iowa 1031, 1034, 65 N.W.2d 372, 373, states:

'We have consistently held that violation, without legal excuse, of a statute which...