Kuehn v. Jenkins

• Decision Date: 12 January 1960
• Docket Number: No. 49796,49796
• Citation: 100 N.W.2d 610,251 Iowa 718
• Parties: Clara KUEHN, as Administratrix of the Estate of Betty Kuehn, deceased, Appellee, v. Novaleen JENKINS, Henry L. Jenkins, Jenkins Trucking and Feed Co., and Claude Junior Dishman, Appellants.
• Court: Iowa Supreme Court

Page 610

100 N.W.2d 610

251 Iowa 718

Clara KUEHN, as Administratrix of the Estate of Betty Kuehn, deceased, Appellee, v. Novaleen JENKINS, Henry L. Jenkins, Jenkins Trucking and Feed Co., and Claude Junior Dishman, Appellants.

No. 49796.

Supreme Court of Iowa.

Jan. 12, 1960.

Rehearing Denied April 8, 1960.

Archerd, Birdsall & Draheim, Clarion, and Alan Loth, Fort Dodge, for appellants.

McCarville & Bennett, Fort Dodge, for appellee.

THOMPSON, Justice.

Betty Kuehn, a 21-year-old single woman, was instantly killed in a collision between the automobile in which she was a passenger and a two-ton truck owned by the defendant Novaleen Jenkins, and Henry L. Jenkins, and Jenkins Trucking and Feed Co., and operated by the defendant Claude Junior Dishman. The collision occurred about 6:30 a. m. July 26, 1959, at a street intersection in Clarion, Iowa. Her mother, Clara Kuehn, as administratrix, brought an action for damages to the daughter's estate. At the same time Clara Kuehn, the driver of the automobile in the collision, brought an action against the defendants in her own behalf for injury and damages. The cases were tried together, resulting in a verdict and judgment for plaintiff herein in the sum of $25,000 in her action as administratrix. Defendants appeal. In the companion case the jury verdict of $5,000 for the mother was set aside by the court and she appealed. See Kuehn v. Jenkins, Iowa, 100 N.W.2d 604. The appeals were handled separately, although both refer to a single record. In this opinion we consider only the defendants' appeal in the administratrix' case.

First Avenue in Clarion runs east and west, and Eighth Street runs north and south. Eighth Street was 18 feet 10 inches wide, and the blacktop between the gutters on First Avenue was 22 feet 6 inches wide. There is a sharp dispute as to where in the intersection the collision took place, which, because of its importance, requires a somewhat detailed examination of the testimony.

Mrs. Kuehn, whose residence was on the southeast corner of the intersection, testified that she backed her car into Eighth Street and headed north toward the intersection with First Avenue at about eight or ten miles per hour. She was taking the decedent to the telephone office where Betty was employed. It was only 109 feet from the center of the east and west Kuehn driveway to the intersection center of First Avenue.

Mrs. Kuehn testified: 'When I started I straightened it out, heading north, * * *. There were no cars or vehicles on the street, and I started. I could see down the street almost a block. As I moved the car north I got to a point where I could see beyond the house (57 feet 9 inches from curb). Then I looked to the right and looked to the left. No cars were approaching. When I got even with the sidewalk (about 16 feet from curb), Betty yelled, 'Look out, Mom,' and here the truck was right there. I put on my brakes. When I came to a stop I was on the south side of the street, not on the other side. My car had not crossed the center line of the intersection. My car was not moving at the time of the accident because I applied the brakes and was at a dead stop when the truck hit us. He was doing at least 35 to 40 miles an hour, maybe more.' She further testified defendant Dishman 'was about three-quarters * * * down the street on the south side of the street, a quarter past the middle of the street at least. In place of being on the north side of the street * * * he was half way over on the south side. I was on * * * my side of the street. There was no other vehicles moving, standing or parked on the street east of 8th * * *; that street was entirely clear on the north side. The left hand of the front, like the front fender of the truck, came into the right front fender of my car.' Thereafter she lost consciousness, and the next thing she remembered she picked herself up out in the middle of the street. She didn't 'remember what course my car took from the moment of the impact. * * * Betty was lying next to the curb on the north side of 8th Street right on the corner of First Avenue * * * facing east.'

Photo Exibit 4 shows the intersection along with the position of the vehicles when they came to rest after the collision. The Kuehn car, except for thr left wheels, was entirely on the parking facing east at the southwest corner of the intersection. The truck with a stock body was facing west, next to the north curb of First Avenue about 211 feet west from the center of the intersection involved. There were black tire skid marks in the east lane of 8th Street extending about 22 feet 11 inches, which witnesses said were made by the Kuehn car. They appear in Exhibit D, which also shows sharp curving tire marks to the west and several wet spots which were said to be from radiator fluid. Here again there is a dispute. Mr. Fletcher, testifying for plaintiff, said: 'I saw some skid marks on the pavement coming from the south up part way across the intersection,' and in answer to the question, 'Can you tell us where the north end of those skid marks ended with reference to the middle of the street?' he said, 'Well, I would say it was a foot or two south of the center of the street.' (Referring to First Avenue.)

There were also tire marks on First Avenue which extended from the truck back to the intersection. Exhibit 21 shows them curving first to the south lane, then to the north lane, and then at the intersection near the debris they disappear. The defendant Dishman explains them by saying he was knocked from his seat behind the wheel and temporarily lost control of the truck after the collision. While he admits that he did not see the Kuehn car he said: 'I was on the north side of the street. At the moment of impact my truck swerved to the north, I don't know how far. My truck was going between 20 and 25 miles per hour because that is as fast as the truck can go in that gear. Couldn't possibly go over 30 miles an hour in the gear on the low side of third. * * * The truck was not running wide open in that gear. * * * The fastest gear is the 4th which will go probably 40 miles per hour.' There was other testimony tending to confirm his claim that the truck had been driven in third gear on the low side.

The physical facts, as related by the witnesses and disclosed by the exhibits, bear out the testimony that these vehicles came together with considerable force. In addition to throwing a 3,700 pound automobile completely around and depositing it over 35 feet from the place of contract, the force smashed in the right front fender, flattened the right front wheel and assembly, bent in the frame in the right front, smashed the left front head lamp and grill, and as the heavy rear wheel of the truck apparently climbed over the rear trunk lid, smashed the rear window and bent in the roofing. Exhibits A, B. 17, and 18 disclose much of these damages. The car was a total wreck. On the other hand, the truck had a broken left head lamp, a dent in its fender and scratch marks on the left side of the body. The radiator was ruined and the left door jammed. Otherwise the truck was not seriously damaged.

Except for Mrs. Kuehn and the defendant Dishman there were no eyewitnesses to the collision, but the neighbors testified they were awakened by the 'loud crash.' Mr. Fletcher said, 'I thought it was a freight train.' Mrs. Fletcher said she was aroused by 'a sound like an explosion.' Tillie Amsbaugh said, 'It was a terrible crash. I thought that a car had run into the trees on my corner.' Mr. Schmidt, who lived on the third lot west of the intersection said, 'It sounded like two railroad cars bumping together. * * * I had been asleep, I was aroused from sleep.'

The trial court submitted to the jury three pleaded charges of negligence against defendants: (1) failure of defendant Dishman 'to maintain a proper lookout for other traffic in the lawful use of said street;' (2) 'in operating said truck at a speed in excess of 25 miles per hour in a residential district in said city;' (3) 'in failing to yield one-half of the roadway to the automobile in which the plaintiff's decedent was a passenger.'

The learned trial court took the position that there was substantial evidence to sustain a jury finding in favor of plaintiff on all three grounds, and we agree.

Defendants assign a number of alleged errors which they group into four divisions. They are: (1) submitting grounds of negligence not sustained by evidence; (2) errors in the instructions; (3) an unfair trial, and refusal of instructions to palliate it; and (4) an excessive verdict which the trial court refused to reduce and to eliminate the mother's half because of her concurring negligence as a proximate cause of the daughter's death.

I. The court did not err in overruling defendants' motion to direct a verdict based on claimed insufficient evidence. Relative and material evidence and justifiable inferences favorable to the plaintiff must, of course, be accepted at their face value in determining whether the case is submissible to a jury. In considering defendants' claim, the testimony must be viewed in the light most favorable to plaintiff. Soreide v. Vilas & Co., 247 Iowa 1139, 1143, 78 N.W.2d 41, 44. The rule is applicable to both specifications of defendant negligence and plaintiff's freedom from contributory negligence. Hackman v. Beckwith, 245 Iowa 791, 802, 64 N.W.2d 275, 282; Mongar v. Barnard, 248 Iowa 899, 904, 82 N.W.2d 765, 775; Law v. Hemmingsen, 249 Iowa 820, 824, 89 N.W.2d 386, 391, and cases cited. When this is done we think evidence of the defendant Dishman's negligence sufficient for submission to the jury.

II. The question of whether the pleaded specification of failure to keep a proper lookout should have been submitted may be shortly answered. Clara Kuehn, the driver of the car in which Betty Kuehn was riding, testified that she stopped on the south side of the intersection, and that the...