Lewis v. Super Valu Stores, Inc.

• Decision Date: 15 August 1966
• Docket Number: No. 18244.,18244.
• Citation: 364 F.2d 555
• Parties: Hazel LEWIS, Administratrix of the Estate of Ralph Edward Mott, Deceased, Appellant, v. SUPER VALU STORES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

364 F.2d 555 (1966)

Hazel LEWIS, Administratrix of the Estate of Ralph Edward Mott, Deceased, Appellant, v. SUPER VALU STORES, INC., Appellee.

No. 18244.

United States Court of Appeals Eighth Circuit.

August 15, 1966.

Don J. Wilson, of Wilson, Maley & Stamatelos, West Des Moines, Iowa, for appellant; Charles F. Glenn, of Wilson, Maley & Stamatelos, West Des Moines, Iowa, on the brief.

J. Rudolph Hansen, of Hansen, Wheatcraft, Galvin & McClintock, Des Moines, Iowa, for appellee.

Before VAN OOSTERHOUT, BLACKMUN and GIBSON, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by Hazel Lewis, Administratrix of the Estate of Ralph Edward Mott, Deceased, from final judgment dismissing her complaint seeking damages for wrongful death of Ralph Edward Mott alleged to have been proximately caused by the negligence of Ralph L. Mott, driver of the truck of defendant Super Valu Stores, Inc., involved in the accident.

This case was tried to the court without a jury. The trial court's memorandum opinion, which incorporates its findings of fact and conclusions of law, is reported at 249 F.Supp. 852. Jurisdiction, based upon diversity of citizenship and the requisite amount, is established.

Plaintiff in the first division of her complant sought recovery under the doctrine of res ipsa loquitur. In the second division, specific negligence was pleaded — failure to keep proper lookout and failure to have vehicle under control. The trial court found as a fact that the driver of the defendant's truck was not guilty of negligence under any theory pleaded.

Ralph L. Mott, father of decedent, was employed by the defendant to operate a large delivery truck. On June 26, 1964, the date of the fatal accident, decedent with the permission of the defendant accompanied his father on his truck route, as he had done on many previous occasions. At 9:30 a. m., the truck arrived at a store in Cedar Rapids, Iowa, to make a delivery. Decedent and his father got out of the truck and opened the rear door thereof preparatory to backing it up to the loading dock. The son then occupied a place of safety on the loading dock and was told by his father to stand back. The father proceeded to back the truck slowly and directly to the loading dock. He could not see his son on the dock by reason of the obstruction caused by the open rear door of the truck. The son met his death by being crushed between the truck and the building. There were no eye-witnesses to the accident and no evidence to show how or why the son had moved from his prior position of safety. Decedent was eleven years of age at the time of the accident. He was a bright, healthy and obedient child.

Plaintiff as grounds for reversal urges:

I. As a matter of law, defendant's driver did not keep a proper lookout.

II. The court erred in denying recovery on the res ipsa loquitur doctrine.

Plaintiff also raises the point that under the Iowa no eyewitness rule a presumption exists that decedent exercised ordinary care for his own safety and that a child under fourteen years of age is not chargeable with contributory negligence. We agree with the defendant that such points have no material bearing upon this appeal. The trial court, having determined that the defendant was not guilty of negligence, had no occasion to consider the contributory negligence issue. The issue on this appeal is whether the court committed error in determining defendant was guilty of no negligence.

Plaintiff's contention that a motor vehicle driver must assume that a child under fourteen may act without any care will be considered in our discussion of point I, supra.

Rule 52(a), of the Federal Rules of Civil Procedure, clearly provides that findings made by a court in a case tried without a jury shall not be set aside unless clearly erroneous. Findings of fact can be set aside only upon a clear demonstration that they are without substantial evidentiary support or that they are induced by an erroneous view of the law. The clearly erroneous standard likewise applies to reasonable inferences to be drawn from stipulated or undisputed facts, and it is for the trial court rather than the appellate court to draw legitimate and permissible inferences. Baker v. United States, 8 Cir., 343 F.2d 222, 224; Cole v. Neaf, 8 Cir., 334 F.2d 326, 329.

I.

We now reach for consideration plaintiff's contention that the court should have determined as a matter of law that the defendant's driver did not keep a proper lookout. The trial court in its opinion accurately and concisely summarizes with supporting authority the Iowa law relating to the duty of a motor vehicle driver to maintain a lookout. In Devore v. Schaffer, 245 Iowa 1017, 65 N.W.2d 553, 557, 51 A.L.R.2d 1041, the court thus defines "lookout":

"As used in connection with the operation of a motor vehicle it has no technical legal significance. Its meaning depends on the context. Here, as applied to defendant, it could only mean care to discover whether plaintiff was in a place of safety from possible injury by the contemplated movement of the truck and trailer."

See McClenehan v. Des Moines Transit Co., 132 N.W.2d 471, 474.

In Nelson v. Mitten, 218 Iowa 914, 255 N.W. 662, 664, the court in affirming a ...