Law v. Hemmingsen

• Decision Date: 09 May 1956
• Docket Number: No. 48919,48919
• Citation: 76 N.W.2d 783,247 Iowa 855
• Parties: Diane LAW, a Minor, by her Natural Father, and Next Friend, Richard G. Law, Appellant, v. Hans Franklin HEMMINGSEN and Francis Putnam, d/b/a Putnam Servi-System, Appellees.
• Court: Iowa Supreme Court

Page 783

76 N.W.2d 783

247 Iowa 855

Diane LAW, a Minor, by her Natural Father, and Next Friend, Richard G. Law, Appellant, v. Hans Franklin HEMMINGSEN and Francis Putnam, d/b/a Putnam Servi-System, Appellees.

No. 48919.

Supreme Court of Iowa.

May 9, 1956.

Robert M. Dippel, Council Bluffs, and Charles E. Kirchner, Omaha, Neb., for appellant.

Smith, Peterson, Beckman & Wilson, Council Bluffs, for appellees.

SMITH, Justice.

On February 29, 1952, plaintiff Diane Law (then 4 years old) was riding with her parents (Richard G. and Florence Law) in a southerly direction toward Council Bluffs, Iowa, on Highway U. S. 75. Her father was driving his 1941 two-door Chevrolet automobile. His wife was sitting at his right and Diane was on the back seat. It was about 6:30 A. M. and a light snow was falling which stuck around the windshield wipers and covered the pavement from side to side.

At a point about one and one-half miles north of the city they collided with a 1948 International ton and a half truck or tank wagon coming from the south, owned by defendant Putnam and driven by defendant Hemmingsen, resulting in severe personal injury to Diane. The present action brought by her father as next friend seeks recovery therefor. (The father is referred to in the record as plaintiff but of course Diane is the real party in interest.)

At the close of the evidence the trial court sustained defendants' motion for directed verdict and this appeal results. The trial court found: '* * * that the uncontradicted evidence of the plaintiff alone * * * and of (other) evidence offered shows that there has not been established any acts of negligence on the part of defendant Hemmingsen * * *.

'Under the * * * condition of the record at the time that plaintiff rested his case, there can be no question * * * that the accident was brought about by getting his car at a 45 degree angle or more as it was skidding * * *, and that * * * the collision occurred in the lane of traffic in which defendant Hemmingsen was properly driving.'

The petition specifies three grounds of negligence: Failure to keep proper lookout; failure to slow, change or divert the course of the truck so as to avoid the collision; and failure to yield the right of way to the Law car. The trial court expressed the opinion 'there is only one charge * * * that could be submitted, and that is the charge of failing to yield the right-of-way, and * * * that specification has not been established so as to make a jury question, so that same cannot have been the proximate cause of the accident.' We agree that is the principal question demanding our study; and of course we must view the evidence in the light most favorable to plaintiff.

The Law car was traveling down a slight grade and toward a gradual left turn to the east. Headlights were on. Windshield wipers were operating. Mr. Law applied his brakes as they saw the truck approaching from the south. His car skidded, the front end turning to the right, and assumed a position diagonal to the travel lanes. Mrs. Law says 'to a 45 degree angle.' Mr. Law testifies the 'rear end of his car went to the left, front end going onto the right or west shoulder;' also, 'When he saw the other car coming toward him he started for the ditch but did not get to the ditch.'

I. While the case is close and the record not too clear, a majority, at least, of the court thinks it sufficient to have generated a jury question. There is no testimony of any eyewitness except the occupants of the vehicles involved in the collision and unfortunately there seems little to be gleaned from testimony of pavement marks and the location of the vehicles immediately or shortly after. The probable or approximate location of the collision was shown by the debris but we cannot find it throws much, if any, light on the problem as to which lane of travel the collision occurred in.

The Iowa State Highway Patrolman (Keller) arrived about 8:30, two hours after the accident. He says the Law car was 'damaged primarily on the left rear side and corner, the extreme back portion of the car. * * * It was in the ditch on the west side of the highway and to the north of the intersecting township road. * * * (It was) headed in a northerly direction with all four wheels off the traveled portion of the highway.' He says 'The left rear window was broken out with pieces of glass missing.' He saw 'no other marks or anything else of significance about the Chevrolet.' He didn't see any damage on its front.

This witness says the truck was sitting on the east shoulder off the highway headed north. He made no measurement but (on cross-examination) estimated it as approximately 150 feet north of the Chevrolet. 'The damage on the truck was the left front consisting of the grill, front fender and left headlight.' Based on the grouping of the debris the witness (on cross-examination) places the actual point of impact as about in the center of the east lane of traffic,' but also had already testified 'It was more or less just scattered there and travel had spread it farther than perhaps it was in its original state.'

The record says witness Keller identified exhibit 10 as a blue print of the highway from the Highway Commission office and agreed 'there is a break or curve in the road at the culvert. Truck driver Hemmingsen going north would have to turn to his right * * * and a vehicle going south would turn to his left.' (Emphasis supplied.)

An examination of the exhibit shows the curve referred to was slight but probably sufficient to sustain the conclusion elicited from the witness that 'If the driver of the vehicle going to the north didn't follow the contour of the road * * * his line of travel would then take him onto the left side of the highway.' A graveled township road from the west intersects the paved highway forming a T-intersection near the culvert under the pavement. The culvert was marked with a white post with a black cap on it.

The testimony of Mr. and Mrs. Law, properly interpreted, would tend to prove definitely that the collision occurred in their right lane--the west lane--of travel. She says she first saw the headlights of the approaching vehicle 'four or five car...