Koll v. Manatt's Transp. Co., No. 2-58076

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard before MOORE; HARRIS
Citation253 N.W.2d 265
Decision Date20 April 1977
Docket NumberNo. 2-58076
Parties5 O.S.H. Cas. (BNA) 1398, 1977-1978 O.S.H.D. (CCH) P 21,763 Michael E. KOLL, Administrator of the Estate of David Joseph Koll, Deceased, and Michael E. Koll, Individually, Appellants, v. MANATT'S TRANSPORTATION CO., and Michael Manatt, Appellees.

Page 265

253 N.W.2d 265
5 O.S.H. Cas. (BNA) 1398, 1977-1978 O.S.H.D. (CCH) P 21,763
Michael E. KOLL, Administrator of the Estate of David Joseph Koll, Deceased, and Michael E. Koll, Individually, Appellants,
v.
MANATT'S TRANSPORTATION CO., and Michael Manatt, Appellees.
No. 2-58076.
Supreme Court of Iowa.
April 20, 1977.

Page 267

Bierman & Bierman, P. C., Grinnell, for appellants.

A. Roger Witke and Thomas S. Reavely, Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellees.

Heard before MOORE, C. J., and MASON, UHLENHOPP, HARRIS and McCORMICK, JJ.

HARRIS, Justice.

This wrongful death suit arose from a fatal accident in which a young workman lost his life July 13, 1972. Trial to a jury resulted in a defendant's verdict. This appeal challenges the "unavoidable accident" instruction, a trial court ruling striking certain specifications of negligence, and a trial court ruling denying a motion for permission to amend to conform with the proof. We do not reach a third assignment because it involves a matter not likely to recur. We reverse the trial court and remand the case for a new trial.

During June and July of 1972 Manatt's, Inc. was resurfacing the shoulder of Interstate Highway 80. At the scene was a truck owned by Manatt's Transportation Co. Manatt's Transportation Co. is a distinct legal entity from Manatt's, Inc., though management of the two corporations is identical. The truck was being driven by Michael Manatt, an employee of Manatt's Transportation Co. The truck was delivering gravel to a gravel spreader, referred to in the record as a "chipper."

The work consisted of spraying oil on the shoulder, depositing gravel over the oil, and rolling the gravel. A truck called an "oil distributor" was used to spray oil on the shoulder. The chipper followed the oil distributor and deposited gravel on the oil and the shoulder. In depositing gravel the chipper was coupled to the back of a dump truck filled with gravel. As the chipper proceeded down the shoulder it pulled the dump truck behind it. When a dump truck became unloaded it was detached from the chipper and another dump truck would then be backed up to the chipper for attachment. A line of loaded dump trucks was backed down the highway lane nearest the shoulder being repaired to await attachment. The dump trucks would be backed up when the drivers observed in their rearview mirrors the other trucks backing up. The only time a signalman was used was when a particular truck was to be attached to the chipper or at certain points when a particular truck was crossing a line of traffic.

A group of workmen made up a "patching crew" which followed the chipper and its attached dump truck. One of the crew's jobs was to stand on the shoulder and pull any gravel deposited on the highway onto the shoulder.

David Koll, plaintiff's decedent, (decedent) was a member of the patching crew. He had recently graduated from high school and thereafter began his employment with Manatt's, Inc. At approximately 3:30 p. m. July 13, 1972 the truck owned by Manatt's Transportation Co. and driven by Michael Manatt backed over decedent causing his death.

The truck was a tandem vehicle with a 14 foot dump box. It was equipped with a

Page 268

back-up bell located on the right dual wheels. In backing, Michael Manatt used two attached rearview mirrors, one mounted on each side of the truck. Each mirror was approximately five inches wide and 15 inches high. When the accident occurred the truck was loaded with gravel and was in a line of trucks being backed toward the chipper.

Immediately prior to the accident the patching crew was caught up and closer to the trucks than normal. The crew was hurrying. Decedent was standing on the shoulder next to the pavement pulling rock from the pavement onto the shoulder.

Plaintiff contends the truck either struck decedent or his broom causing him to trip over the broom and fall into the path of the right rear wheels of the truck. Defendants contend decedent tripped over the broom of his own accord, fell to the pavement, and was then run over. There was much testimony the back-up bell on the truck was audible on the day of the accident. One member of the patching crew testified he did not recall hearing such a bell. Plaintiff is decedent's father and brings this action in his own behalf and as administrator of decedent's estate for wrongful death.

I. Over plaintiff's protest the trial court submitted the following jury instruction:

"Instruction No. 21. You are instructed that the law recognizes what is termed an unavoidable or inevitable accident. These terms do not mean that it was impossible to avoid an accident, but simply denote that the accident occurred without having been proximately caused by negligence.

"In this case there is testimony that the deceased, David Koll, tripped, stumbled or lurched into the path of the truck Michael Manatt was backing at a point in time when there was no time for the truck to stop. If you find that David Koll did so trip, stumble or lurch into the path of the truck Michael Manatt was backing and that said trip, stumble or lurch took David Koll from a position on the shoulder where he would not have been struck by the truck and caused him to enter and be upon the roadway in the path of the backing truck, then you may find that David Koll's death was an unavoidable accident not proximately caused by negligence, and if you so find your verdict would be for defendants on both counts of the petition of plaintiffs."

The unavoidable accident instruction has never found outright approval in our cases, but until now has managed to escape outright disapproval. In Cavanaugh v. Jepson, 167 N.W.2d 616, 622 (Iowa 1969) we said: "We have never gone so far as to condemn the doctrine of unavoidable accident, but it is virtually impossible to discover in our decisions any clear-cut approval of it." In Cavanaugh we reversed a judgment of the trial court for giving the instruction under circumstances similar to the instant case. We said the doctrine could have no application where the issue is which of two litigants was negligent.

Although our holding in Cavanaugh would in any event require reversal for giving the instruction in the instant case, in which negligence and contributory negligence were issues, we elect to base the reversal on an outright condemnation of the doctrine. In Cavanaugh, 167 N.W.2d at 622 we quoted from Butigan v. Yellow Cab Co., 49 Cal.2d 652, 658, 320 P.2d 500, 504, 65 A.L.R.2d 1, 6-7 (1958):

" * * * 'In reality, the so-called defense of unavoidable accident has no legitimate place in our pleading. It appears to be an obsolete remnant from a time when damages for injuries to person or property directly caused by a voluntary act of the defendant could be recovered in an action of trespass and when strict liability would be imposed unless the defendant proved that the injury was caused through "inevitable accident" ' * * * The instruction is not only unnecessary, but it is also confusing.''

We again concur in these sentiments. We think the time has come to eliminate the confusion caused by attempting to apply a doctrine which actually means nothing beyond a denial by a defendant that any negligence of his was a proximate cause of the injury. The instruction " * * *

Page 269

merely restates a feature of the...

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51 practice notes
  • Considine v. City of Waterbury, No. 17551.
    • United States
    • Supreme Court of Connecticut
    • September 12, 2006
    ...the plaintiff was not within the class of individuals that the regulation was meant to protect. See Koll v. Manatt's Transportation Co., 253 N.W.2d 265, 270 (Iowa 1977) (evidence of violation of Occupational Safety and Health Administration Page 93 is admissible evidence of negligence in ac......
  • Sanchez v. Galey, No. 15918
    • United States
    • United States State Supreme Court of Idaho
    • October 17, 1986
    ...4 See also Kelley v. Howard S. Wright Construction Co., 90 Wash.2d 323, 582 P.2d 500 (1978); Koll v. Manatt Transportation Co., 253 N.W.2d 265 (Iowa 5 In order to establish a violation of the OSHA General Duty Clause, which covers unanticipated hazards not covered by specific OSHA regulatio......
  • Reinhart v. Young, No. 94-0734
    • United States
    • Supreme Court of Texas
    • June 15, 1995
    ...742, 744-46 (1968); White v. Evansville Am. Legion Home Ass'n, 247 Ind. 69, 210 N.E.2d 845, 846 (1965); Koll v. Manatt's Transp. Co., 253 N.W.2d 265, 269 (Iowa 1977); George v. Guerette, 306 A.2d 138, 144 (Me.1973); Stover v. Patrick, 459 S.W.2d 393, 396 (Mo.1970); Graham v. Rolandson, 150 ......
  • Acosta v. Hensel Phelps Constr. Co., No. 17-60543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 2018
    ...the Secretary’s interpretation by the time Melerine was decided—and the Iowa Supreme Court—which in Koll v. Manatt’s Transportation Co. , 253 N.W.2d 265, 269–70 (Iowa 1977), held only that violation of an OSHA standard is negligence per se as to an employee but only evidence of negligence a......
  • Request a trial to view additional results
51 cases
  • Considine v. City of Waterbury, No. 17551.
    • United States
    • Supreme Court of Connecticut
    • September 12, 2006
    ...the plaintiff was not within the class of individuals that the regulation was meant to protect. See Koll v. Manatt's Transportation Co., 253 N.W.2d 265, 270 (Iowa 1977) (evidence of violation of Occupational Safety and Health Administration Page 93 is admissible evidence of negligence in ac......
  • Sanchez v. Galey, No. 15918
    • United States
    • United States State Supreme Court of Idaho
    • October 17, 1986
    ...4 See also Kelley v. Howard S. Wright Construction Co., 90 Wash.2d 323, 582 P.2d 500 (1978); Koll v. Manatt Transportation Co., 253 N.W.2d 265 (Iowa 5 In order to establish a violation of the OSHA General Duty Clause, which covers unanticipated hazards not covered by specific OSHA regulatio......
  • Reinhart v. Young, No. 94-0734
    • United States
    • Supreme Court of Texas
    • June 15, 1995
    ...742, 744-46 (1968); White v. Evansville Am. Legion Home Ass'n, 247 Ind. 69, 210 N.E.2d 845, 846 (1965); Koll v. Manatt's Transp. Co., 253 N.W.2d 265, 269 (Iowa 1977); George v. Guerette, 306 A.2d 138, 144 (Me.1973); Stover v. Patrick, 459 S.W.2d 393, 396 (Mo.1970); Graham v. Rolandson, 150 ......
  • Acosta v. Hensel Phelps Constr. Co., No. 17-60543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 2018
    ...the Secretary’s interpretation by the time Melerine was decided—and the Iowa Supreme Court—which in Koll v. Manatt’s Transportation Co. , 253 N.W.2d 265, 269–70 (Iowa 1977), held only that violation of an OSHA standard is negligence per se as to an employee but only evidence of negligence a......
  • Request a trial to view additional results

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