Lange v. Bedell
| Decision Date | 15 February 1927 |
| Docket Number | 37521 |
| Parties | HULDA J. LANGE, Appellee, v. CLARENCE BEDELL, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JULY 1, 1927.
Appeal from Lee District Court.--JOHN E. CRAIG, Judge.
Action at law, to recover damages for loss of time, expense of medical service and attendance, and personal injuries resulting from the collision of an automobile with the plaintiff's buggy. Verdict and judgment for plaintiff and the defendant appeals.
Affirmed.
Herminghausen & Herminghausen and Seerley & Clark, for appellant.
Johnson & Martin, for appellee.
I.
While proceeding eastward from the town of Wever, on a public highway about 8 P. M., December 10, 1923, the buggy in which appellee and Mrs. Allie Lange, her mother, were riding, was struck by a motor vehicle traveling in the opposite direction, and the left front wheel was demolished, with the result that Mrs. Lange was at once thrown out of the buggy onto the ground, as was also appellee, who was dragged some distance by the horse, which ran away. Shortly thereafter, this action was instituted by the plaintiff, to recover damages for injuries alleged to have been received by her when she was thrown from the buggy, for loss of time, and for expenses of medical care and treatment. Appellee alleged in her petition that the motor vehicle which struck the buggy was owned by appellant, and that it was being driven by his son Leslie Bedell, with his knowledge and consent.
At the conclusion of plaintiff's case, and again at the close of all the evidence, appellant moved for a directed verdict, upon the grounds that the evidence wholly failed to show that the automobile causing the accident was the property of appellant, or that same was being driven by his son, with his knowledge and consent; and that appellee was guilty of contributory negligence. The several questions presented by this motion were raised at every stage of the proceedings and in every available way. Appellee testified that she was unable to identify the automobile, which was a Ford coupe, or the driver thereof, in the darkness, but that she observed, as it approached, that a dim light was displayed on the front end thereof, and that the headlights were not shining. Appellant, Leslie, and other members of appellant's family testified that the batteries had been removed from the Ford coupe owned by him, and that, because of this fact, he forbade Leslie, on the evening of the accident, to drive the car until they were restored. Leslie and Howard Tucker, his companion in the car, admitted that they attached a lantern to the automobile and drove it to Wever on the night in question. Tucker further admitted that he knew they struck some object in the highway, and Leslie conceded that it was the buggy occupied by appellee and her mother. The evidence fully warranted the finding of the jury that the automobile in question was owned by appellant. Appellant testified that Leslie was employed by Tucker, who lived about 3 miles distant, to gather corn; that he returned home for supper on the evening of December 10th; and that, during the meal, he said to Leslie that he did not want him to drive the Ford coupe until the batteries were replaced. Leslie, appellant's wife, and his daughter corroborated this testimony given by appellant, which was not disputed by other direct evidence. As appellant was the owner of the automobile, it must be assumed that he exercised the ordinary control and incidents of ownership thereover. Presumptively, therefore, as it was in the possession of Leslie, it was being driven with the owner's consent. Landry v. Oversen, 187 Iowa 284, 174 N.W. 255; Rowland v. Spalti, 196 Iowa 208, 194 N.W. 90; Seleine v. Wisner, 200 Iowa 1389, 206 N.W. 130, Halfpap v. Gruis, 199 Iowa 757, 202 N.W. 592; Napier v. Patterson, 198 Iowa 257, 196 N.W. 73.
This presumption, which we have said is not a very strong one, may be rebutted by proof to the contrary. That Leslie habitually drove the Ford automobile for business and pleasure, both prior and subsequent to the night in question, is either admitted or abundantly established by the evidence. The direct testimony of appellant and the other members of his family, who were called as witnesses, could not, under the circumstances shown, be contradicted by direct testimony. The testimony of these witnesses was not conclusive, and could be rebutted only by circumstances, together with the reasonable or unreasonable character of such testimony. The automobile appears to have been used by Leslie in the same manner as automobiles are customarily used by members of the family old enough to operate the same. Leslie knew that the batteries had been removed, as he had taken them to Fort Madison to be charged. The inquiry might naturally arise in the minds of the jurors as to why appellant deemed it necessary to caution his son not to drive the car without batteries. It would ordinarily be presumed that no prudent person would attempt to drive an automobile at night upon a much frequented public highway with the light batteries removed. We said in Landry v. Oversen, 187 Iowa 284, 174 N.W. 255, that this defense is easily manufactured and difficult to meet. The jury had the right to weigh the testimony of the witnesses in the light of all the facts and circumstances disclosed by the evidence, together with the reasonable or unreasonable character of the testimony. They were not bound to accept the statements of the witnesses as conclusive because not contradicted by other direct evidence, when, in the very nature of things, contradiction thereby was impossible. A question of fact was presented for the jury. The grounds of the motion for a directed verdict so far discussed were properly overruled.
The third ground of the motion was that appellee was guilty of contributory negligence. This contention is based upon the claim that she was driving a blind horse in a narrow highway on a dark night, hitched to a buggy on which no lights of any kind were displayed. The statutes of this state do not require the driver of a horse-drawn vehicle to display lights on such vehicle. In the absence of a statute to that effect, the failure to do so does not constitute negligence as a matter of law. Decou v. Dexheimer (N. J.), 73 A. 49; Saper v. Baker, 91 N.J.L. 713 (104 A. 26). Appellee had a right to be upon the highway at the time and place and in the vehicle described, and the court properly so instructed the jury.
The petition alleged:
During the progress of the trial, appellee filed an amendment to her petition, alleging that "the driving of the car, as alleged in the original petition, without the lights as required by law, is one of the grounds of negligence relied upon, and it being the cause of the injury."
A motion for more specific statements of the allegations of the petition was filed by appellant, in which it was asked that she be required to state in whose interest Leslie was driving the car, in what particular the car was negligently and carelessly driven, and in what particular the driver failed to drive the same in a careful and prudent manner. The motion was sustained in part, and required appellee to make her petition more specific, and to show for whom the car was being driven, and to itemize the expense of medical treatment for which recovery was asked. The amendment filed in response to the ruling on the motion alleged that Leslie Bedell is the son of appellant, and that he was driving the car by and with appellant's consent.
II. The court instructed the jury that the law requires the driver of any vehicle upon a public street or highway to turn to the right and yield one half of the road, when meeting another vehicle; that motor vehicles be equipped with two or more white or tinted lights other than red on the forward part thereof, so placed as to be visible at a distance of 500 feet in the direction in which displayed, and of sufficient illuminating power to reveal any person, vehicle, or substantial object 75 feet ahead of the lamps; that every driver of a motor vehicle upon a public highway shall drive the same in a careful and prudent manner, and at a rate of speed that will not endanger the property of another or the life or limb of any person; that appellee and the driver of the automobile had equal rights to the use of the highway; that each was charged with the duty of maintaining a reasonable lookout for the approach of other vehicles, and of turning to the right, and of exercising reasonable care and prudence to avoid a collision; that travelers lawfully proceeding in an automobile on the right-hand side of the traveled highway are justified in assuming that another traveler going in the opposite direction on the same side thereof will do all that a reasonably prudent and cautious person, under all the circumstances, would do, to avoid a collision.
It is urged by appellant that the foregoing instructions submitted grounds of negligence not alleged in the petition. As previously stated, the specific negligence charged in the petition was the driving of the automobile without...
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