Leinen v. Boettger, 47683

• Citation: 241 Iowa 910,44 N.W.2d 73
• Decision Date: 19 September 1950
• Docket Number: No. 47683,47683
• Parties: LEINEN v. BOETTGER.
• Court: United States State Supreme Court of Iowa

Page 73

44 N.W.2d 73

241 Iowa 910

LEINEN v. BOETTGER.

No. 47683.

Supreme Court of Iowa.

Sept. 19, 1950.

Page & Nash, of Denison and White & White, of Harlan, for appellant.

Fred Louis, Jr. and Bennett Cullison, of Harlan, for appellee.

BLISS, Justice.

At the close of plaintiff's testimony, defendant moved for a directed verdict. The notion was overruled. At the close of all the testimony, defendant renewed his motion to direct. It was again overruled. After the jury had returned a verdict for $14,000 for plaintiff, the defendant filed a motion for judgment notwithstanding the verdict for plaintiff. This motion was denied. The ground of each motion was that plaintiff had not established his freedom from contributory negligence, and because of said failure the court should have so found as a matter of law and entered judgment for defendant, and erred in not sustaining each motion.

Though error was assigned on the ruling on each motion, the single matter presented on this appeal is the issue of contributory negligence. Since that issue must be determined very largely by the facts, we will review the pertinent evidence in some detail. The unfortunate occurrence in which the injuries were sustained was a little after four o'clock in the afternoon of March 10, 1947, about three miles west of Harlan, Iowa, on primary highway No. 39,--an east-west road surfaced with a concrete pavement 20 feet wide--at a place where it was intersected at right angles by a north-south dirt secondary road. It had been raining some earlier that day and while it had quit, there was some fog and mist in the air and the pavement was damp and the shoulders on each side of the pavement were soft and muddy. The dirt road was muddy and slippery, and considerable mud had been carried onto the paving at the intersection, and there was mud in a lesser amount on the pavement for some distance on each side of the intersection. Defendant testified that there was more mud on the pavement at the intersection than 100 feet west of it.

The testimony does not all harmonize, but, as we are required to do, we present the evidence and consider it in the aspect most favorable to the plaintiff, against whom the motions were made. We set out a tracing of the intersection and highways contiguous from a surveyor's plat.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Each highway at the intersection, and for some distance on each side of it passed through deep cuts caused by cutting through the top of a hill. The walls of the cut in each road were high and abrupt and one traveling either direction on either road had little view of the other until he entered the intersection. There was some fall in the grade of the paved road to the east through the intersection.

Plaintiff was driving his two-door Chevrolet sedan east on No. 39 toward Harlan. His thirteen-year old boy, James, was sitting in the front seat between the father and the latter's sister-in-law. The trial was begun on September 19, 1949. Because of a permanent injury to his brain suffered in the mishap, the plaintiff had retrograde amnesia causing him to have no memory of anything that took place. For that reason he was not a witness.

The defendant, Boettger, 43 years old, lived a half-mile south and a half-mile west of the intersection on a farm on which he had lived from birth. His five-year-old daughter attended a school near the northwest corner of the intersection, about 100 feet north of the pavement and 60 feet west of the dirt road. The pupils were dismissed at four o'clock, and he drove his Plymouth sedan a half-mile east on a muddy dirt road and then drove north a half-mile and crossed No. 39 at the intersection and drove north to get his daughter and a neighbor's daughter of seven years to take them to their homes. He first testified that he drove north and stopped his car with its rear end 20 feet north of the north edge of the pavement, and waited for the children whom he saw walking down the road. Later he testified the distance was 20 or 30 feet. The paved road, No. 39, being a primary road, was a through highway, sec. 321.350, Code 1946, I.C.A., and required stop signs on intersecting crossroads, sec. 321.345, Code 1946, I.C.A., and all vehicular traffic on an intersecting road required to stop before entering or crossing the through highway. Sec. 321.1, subd. 53, Code 1946, I.C.A. The statutory stop signs had been erected on the dirt road on each side of the intersection. The stop sign north of the intersection was sixty feet from the north edge of the pavement and ten feet west of the traveled way of the north dirt road. The stop sign south of the intersection was similarly located on the east side of the south dirt road.

Defendant testified: 'I stopped north of the paving where the stop sign is. I imagine it's about twenty-five feet from the pavement. It would be north of the paving and on the west side of the road. I think the stop sign was pretty near across from where I was seated in the car. As I drove across the pavement on No. 39 that day to get off the pavement I drove onto the west side on the road a little north of the pavement. As I backed up toward the pavement I come right down the west side because the center and all that was one big mudhole.' The court reporter then noted, as stated in the printed record during defendant's direct examination: 'The witness thereupon drew a red mark upon the plat, Exhibit 3, commencing at a point just east of the stop sign shown north of the intersection, around toward the mail boxes which are designated on the plat.' The mail boxes--there were three on March 10, 1947, and two at the time of the trial--were just outside the shoulder and about ten feet north of the pavement and fifty feet west of the center of the intersection. Continuing his testimony defendant stated: 'I backed south and west. I backed up until I could look back into the road; then I looked west, I couldn't see anything coming so I backed the two south wheels onto the pavement, then I stopped and I saw west. I looked before I backed onto the paving. I stopped before backed onto the paving. I stopped before I backed the car onto the paving. When I looked west I did not see any car coming, and then proceeded to back onto the paving. When I backed onto the paving my car was south about 2 feet from the north side of the paving and was about parallel with the paving, when I stopped and, 'why, here it was coming.' It looked to me like it would be five or six hundred feet away when I first saw it and it continued to come toward the place where I was. I would say it was coming 60 or 65 miles an hour. I stopped my car just practically south of the mailboxes. The back end of my car was a little west of the mailboxes. When I backed up I looked west and I could always see east as that was in front of me. I turned around to look west. I watched the car from the time when I first saw it, and as it approached it just seemed he turned off a little too far; when he got off the shoulder, why, the mud first took him along, he just kept going out and out. As this car approached me it did not slow down; I didn't hear any horn sounded from this car. It went off the paving about 75 to 100 feet west of my car. I saw the Leinen car coming down the road and there wasn't any obstruction to my view. I had seen the mud on the paving. After I backed from the north I stopped with my two left wheels on the shoulder and my two right wheels on the pavement. I backed the car around to the west. I was going to take the children home. I was going to maneuver the car where I could get in position where I could drive south, forward on the road that is south of the intersection. I didn't back all of my car onto the highway, just part of it. After Mr. Leinen drove by and upset I pulled across the pavement and looked to see if anything was coming. Before he drove by I was just waiting on the shoulder and the pavement. I didn't hear Leinen's horn sounded.'

The witnesses for the plaintiff as to the movements of the two cars were James Leinen, 13, son of plaintiff, R. B. Summerson, Chief Machinist's Mate on recruiting duty for the Navy, who drove a Navy station wagon to the intersection on No. 39 from the east as the defendant approached the intersection, and Mrs. Hawn, wife of a Methodist minister, who was riding in the Navy station wagon.

James, the minor son, sat in the front seat by his father. James was 16 years old at the time of the trial and in 11th grade at school. He was learning to drive a car in March, 1947, and had often ridden with his father, and sometimes over this same road into Harlan. He testified that as they were traveling along he observed the road ahead and that just prior to passing the defendant's car his father was driving at a speed of about 40 miles an hour; he first observed the defendant's car when their car was about 100 feet from the intersection. 'It was then at the north edge of the highway. After I first saw it, it started backing. It kept right on coming. Clear across the highway. It backed across the highway and we kept honking and he kept on coming so we swerved around it. By 'we' I mean 'he', my father. He went around on the south side. He had to go off on the shoulder with all four wheels. At the time my father's car passed the other car, it was about a half a foot to a foot to the edge, from the south edge of the paving. There was not room on Highway 39, on the south side of this car for my father to pass and stay on the highway. At no time after I saw the car backing onto the highway did it stop or check its backward motion until we passed. I remember my father started to drive the car back on the highway, and then all I remember is that I was running up the farmhouse lane. I felt no motion checking the car as we were proceeding on the shoulder of the road. I do not know what the car did after it passed the Boettger car. I knew it...