Lockwood v. Wiltgen

• Decision Date: 08 March 1960
• Docket Number: No. 49884,49884
• Citation: 251 Iowa 484,101 N.W.2d 724
• Parties: Mae LOCKWOOD, Appellant, v. Albert M. WILTGEN and Harry Henry Bonnema, Appellees.
• Court: Iowa Supreme Court

Page 724

101 N.W.2d 724

251 Iowa 484

Mae LOCKWOOD, Appellant, v. Albert M. WILTGEN and Harry Henry Bonnema, Appellees.

No. 49884.

Supreme Court of Iowa.

March 8, 1960.

McDonald, Sayre & McDonald, Cherokee, for appellant.

Van Oosterhout, TePaske & Rens, Orange City, for appellees.

OLIVER, Justice.

Plaintiff Mae Lockwood was injured when an automobile owned and operated by her husband R. F. Lockwood and in which she was a passenger, collided with the rear of a wagon which Orin C. Franke, its owner, was pulling with a tractor. Defendants are Albert M. Wiltgen and Harry Henry Bonnema, the owner and the operator, respectively, of a dump truck which the Lockwood automobile passed immediately before the collision. The accident happened about noon on March 12, 1958. All three vehicles were traveling east on paved Highway 10, a two-lane highway.

The petition alleged the collision was caused by defendants' negligence in permitting gravel, rock, and aggregate, which their truck was hauling, to fall upon the Lockwood car as it started to pass the truck, shattering the windshield of the car, obstructing the vision of the occupants and diverting the attention of the driver, so that, upon completing such passing and returning to the right hand side of the highway his car collided with the rear of the Franke wagon.

Most of the allegations of the petition concerning the circumstances leading up to the collision were denied by the answer, which alleged also, the sole and proximate cause of such collision was the negligence of Mr. Lockwood in driving at a rate of speed which was excessive and which violated the assured clear distance rule, and in failing to have his car under control. When plaintiff rested defendants moved for a directed verdict upon various grounds, most of which were not specific. The court sustained this motion generally, there was a final order or judgment against plaintiff and she has appealed.

I. Appellant complains the order sustaining the motion for directed verdict did not comply with Rules of Civil Procedure, rule 118, 58 I.C.A., which provides: 'A motion, or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally.' Our trial courts are familiar with this rule but do not always observe it. Compliance with it will not be prejudicial to any party because, upon appeal, he may always present any additional grounds in defense of any ruling, or order, which grounds were presented to but not sustained by the trial court. Non-compliance with it frequently places upon an appellant and the supreme court the unnecessary burden of presenting and considering propositions not determined by the trial court or actually relied upon by appellees. However, such non-compliance has not been held reversible error and is not here so held.

II. In determining the sufficiency of the evidence to entitle plaintiff to have the case submitted to the jury the rule requires that it be considered in the light most favorable to plaintiff. At the time of the accident plaintiff was ill with multiple sclerosis, degeneration of the spinal cord and anemia and her husband had taken her away for treatment and was returning her to their home. She testified she was riding in the front seat of her husband's automobile, behind defendants' truck which was loaded with gravel or rock, and some of the load came off the top of the truck and landed on the front of the car, on the windshield. It hit the windshield. 'It just looked like a big hunk and felt like a big bunch of rock or something came right down onto the front of the car; and I guess I passed out; that's all I can remember.'

On cross-examination she testified: 'Q. You didn't see where it came from? A. Well, it was so close, I don't know; we was there close to it. I don't know where it came from exactly. I figured it was off that truck. Q. You figured it was off the truck, but you din't see it actually fall? A. I couldn't see only just when something was coming hurtling down there at you.' Mr. Lockwood testified defendants' truck was hauling an uncovered and heaped up load of rock the size of a small hen's egg and smaller, that his automobile which had been following the truck, started to pass it on its left side and as his automobile came alongside the truck some of the rock came off from somewhere and about a small pailfull landed on the front portion of his car, striking principally on the windshield which it shattered on the right side, in front of plaintiff. It put some spots on the left side of the windshield. 'Well, my wife screamed and I, naturally, looked to see what happened to her.' 'Well, I was trying to find what had scared her so and see, also, if it had came through the windshield and struck her.' 'I was kind of attracted to her and I stayed away from the truck until I could get by it and then I swung over in my right lane.' Mr. Lockwood testified the shattered windshield on the right side and the spots on the left side obstructed his view to a certain extent, and '* * * the things were going on in the car so bad after this crash that I possibly wasn't looking up that side of the road until I got over in the (right) driveway. There was too much confsuion in the car.'

He looked straight down the highway 'after I got straightened up in front of the truck.' He then first saw the farm wagon pulled by a tractor 150 to 200 feet ahead of his car and tried to stop his car but was unable to do so completely. It crashed into the rear of the wagon, injuring plaintiff.

Mr. Lockwood estimated the speed of his automobile as it was passing the truck at 65 miles per hour and the speed of the truck at 50 to 60 miles per hour. The estimated speed of the wagon was ten miles per hour. The skid marks made by the Lockwood car as it approached the wagon were approximately 80 feet long.

III. Section 321.460, Code of Iowa 1958, I.C.A., provides in part: 'Spilling loads on highways. No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom, * * *.'

Appellees do not assert the violation of this statute would not constitute negligence. Upon this phase of the case they contend merely that there was no substantial evidence the rock, etc., which struck the windshield of the car fell from their truck and that the evidence for plaintiff 'would only permit the jury to speculate as to the source of the gravel.'

The record indicates no vehicle other than defendants' truck was in the vicinity when the rocks came 'hurtling down' upon the front of the car. Plaintiff testified some of the load came off the top of the truck and again that she 'figured it was off the truck.' Her husband testified that, as his car came alongside the truck, some of the rock came off from somewhere and about a small pailfull landed on the front portion of the car. Reference to other evidence is unnecessary. It is clear the evidence the rocks fell from the truck was sufficient to require submission to the jury of the issue of defendants' negligence.

IV. Appellant argues the negligence of the operator of an automobile is not imputed to a passenger who has no right of control over the car and the circumstance that the operator is the spouse of the passenger does not alter this rule. This is the settled rule and appellees do not question it. Newman v. Hotz, 226 Iowa 834, 838, 285 N.W. 287; Snook v. Long, 241 Iowa 665, 668, 42 N.W.2d 76, 21 A.L.R.2d 1; Johnson v. Overland Co., 227 Iowa 487, 498, 288 N.W. 601; Case Note in 9 Drake Law Review 49 et seq., and authorities cited in footnote.

V. Another proposition argued by appellant and not disputed by appellees is the sufficiency of the proof of appellant's freedom from contributory negligence to take that issue to the jury. The record shows she was sitting in the front seat of the car on the right side, and to the right of the driver, apparently looking ahead, that she saw and felt the rocks fall on the windshield of the car, screamed and lost consciousness until she was taken from the car after it collided with the wagon. It is clear the evidence was sufficient to support a finding she was not guilty of contributory negligence as a matter of law. Albert v. Maher Bros. Trans. Co., 215 Iowa 197, 202, 203, 243 N.W. 561; Newman v. Hotz, 226 Iowa 834, 285 N.W. 287, supra; Schwind v. Gibson, 220 Iowa 377, 386, et seq., 260 N.W. 853.

VI. Appellees contend the order directing the verdict for defendants was correct, for the reason the evidence did not show that their negligence, if any, was the proximate cause of the collision. We hold this contention is not well founded. Authorities agree there may be more than one proximate cause of an accident and injury. 65 C.J.S. Negligence § 110; 60 C.J.S. Motor Vehicles § 254; 5A Am.Jur., Automobiles and Highway Traffic, section 238.

Law v. Hemmingsen, 249 Iowa 820, 826, 89 N.W.2d 386, 391, states: 'That each person whose negligence concurs or combines to cause injury to another is liable therefor is so well settled citation of authority is hardly necessary.' The decision cites various authorities among which are Restatement, Torts, section 439 and Comment b; Newman v. Hotz, 226 Iowa 834, 839, 285 N.W. 287; Johnson v. McVicker, 216 Iowa 654, 657, 247 N.W. 488, and Judd v. Rudolph, 207 Iowa 113, 119, 222 N.W. 416, 62 A.L.R. 1174, 1180.

In Dennis v. Merrill, 218 Iowa 1259, 1262, 257 N.W. 322, 324, defendants automobiles struck the rear end of a hayrack drawn by a team of horses which thereupon ran away, carrying the tongue and front running gear which had become detached from the wagon, traveled about 600 feet and collided with an automobile in which plaintiff was riding, injuring him. Defendant contended the evidence failed to show defendant's alleged negligence was the proximate cause of the injuries, arguing he had merely...