Maland v. Tesdall
| Decision Date | 11 August 1942 |
| Docket Number | 45928. |
| Citation | 5 N.W.2d 327,232 Iowa 959 |
| Parties | MALAND v. TESDALL et al. |
| Court | Iowa Supreme Court |
Rehearing Denied Nov. 27, 1942.
Emmert, James Needham & Lindgren, of Des Moines, and Harry Langland, of Nevada, for appellants.
Doran Doran & Doran, of Boone, and Ed. J. Kelley, of Ames, for appellee.
Decedent Ellsworth Maland, was a young man of 21 who lived with his mother and brother on a farm near Huxley. The brother as administrator brought this action. Defendants are Burton Tesdall, the owner of the car, an implement dealer at Huxley and his son Arnold, 21 years old. Arnold, with the consent of his father, was the driver of the car. Aside from the decedent, Ellsworth Maland, and the driver, Arnold Tesdall, the other occupants of the car were Archie Maland (cousin of Ellsworth), Obert Overland, and a 15 year old girl, Phyllis Kirkendall, who was Ellsworth's girl friend. All these young people were good friends. The four other than Arnold were guests in the car.
The accident occurred about midnight of September 20, 1939, at the Jordan curve, on U. S. Highway 30, about 10 miles west of Ames and four miles east of Boone. The car was being driven from Ames to Hill Top Inn, a so-called dine and dance place west of Boone. The general direction of the highway from Ames to Boone is west. At the Erickson corner, however, it turns to the north for something over a mile until it reaches the Jordan curve, where the highway makes a sweeping curve to the west into Boone. At this curve Highway 60 from the north meets No. 30. One approaching the Jordan curve on U. S. 30 from the south would by continuing straight north instead of turning left on the curve, travel on No. 60. From a point toward the north or west end of the curve, an intersecting road extends from No. 30 to the northeast to connect with No. 60 at a point roughly 400 feet north of its junction with No. 30 at the south or east end of the curve. This short intersecting road accommodates traffic from the west going north on No. 60 and from the north going west on combined Highways 30 and 60.
There is a triangular plot of ground framed by the curve on No. 30 on the southwest, by No. 60 on the east and by the intersecting road on the north. The surface of this triangular tract or "Y" is 5 to 7 feet lower than the surrounding highways.
The Tesdall car left the right side of the paving at about the beginning of the curve, skidded to the northwest in the gravel and "blacktop" for about 120 feet into a guard post near the southeast corner of the "Y" above described. The first two guard posts, about 10 feet apart, on the outside of the curve were broken off completely. One witness testified the third post was also broken off,--other witnesses that it was merely damaged. These guard posts were connected by two steel cables each about an inch thick. After colliding with these guard posts, the Tesdall car turned a somersault in the air, then struck the ground, again went end over end and again struck the ground, finally coming to rest on its top near a telephone pole some 254 feet from the point where it left the paving.
Decedent was thrown some 80 feet from where the car stopped. He had a fractured skull and died without regaining consciousness. Phyllis and Archie were each thrown about 100 feet from where the car came to rest. Overland was thrown into or near a mulberry tree some 75 feet from the car. All of these four passengers were thrown to the north of where the car stopped. Arnold Tesdall, the driver, lay underneath the gas tank of the car. One of the girl's slippers and the top of the car trunk were found on the intersecting road.
About 7:30 that evening Ellsworth and Arnold had left Huxley for Ames where Phyllis lived. About 9, after riding around Ames, these three went to a skating rink where they met Obert Overland. Obert and Arnold skated for an hour and a half. There is evidence that Ellsworth stayed in the car with Phyllis at the skating rink. Obert had bought four pints of whiskey that evening at a state liquor store. He had given one bottle to his brother and left two in his own car. The remaining bottle, about a third full, was found by the officers about 30 feet from the Tesdall car at the scene of the wreck. Arnold, the driver, admitted he had a drink of "7up" "spiked" with whiskey at the skating rink. Overland testified that Ellsworth, the decedent, spiked the "7up" with a bottle that he, Ellsworth had. Phyllis denied this and denied that Ellsworth had been drinking. After leaving the skating rink, the party visited two different cafes or beer parlors, although Ellsworth and Phyllis sat in the car while the other three young men went inside the second cafe visited. Arnold drank a small bottle of beer at the first of these two places. It was there that Archie Maland joined the party. After leaving the second of these two places the trip to Boone was undertaken.
This action was brought under the guest statute, section 5037.10, Code 1939, claiming that Ellsworth's death was caused by the reckless operation of the Tesdall car and because Arnold, the driver, was under the influence of intoxicating liquor. At the close of the evidence, the court withdrew the issue of intoxication and submitted to the jury only that of reckless operation.
I. The first assigned error is the failure of the court to direct a verdict for defendants-appellants. The point most strenuously urged in this connection is that as a matter of law the sole proximate cause of the accident was a blowout of the right front tire of the Tesdall car. This was pleaded by appellants as an affirmative defense. The contention cannot be sustained.
The burden to prove this affirmative defense by a preponderance of the evidence rested upon appellants. Johnson v. McVicker, 216 Iowa 654, 658, 247 N.W. 488; Griffin v. Stuart, 222 Iowa 815, 825, 270 N.W. 442. In the absence of an admission by the adverse party, it is not often that a party having the burden upon such an issue establishes it as a matter of law. Low v. Ford Hopkins Co., 231 Iowa 251, 254, 1 N.W.2d 95, 97.
It does not appear conclusively that there was a blowout in the right front tire at the time the car left the paved surface. The tire was a Goodrich tire which had been purchased in the spring. The owner of the car testified all the tires were in good condition. Arnold testified: "As I came to the curve * * * something pulled on the steering wheel something terrible and I figured it was a blowout." It is conceded no damage was done to the casing or outer tire. There is evidence that the next morning a "pinch blowout" was found along the bead or edge of the inner tube on the right front tire. All other tires and wheels had been stolen before the wrecked car had been towed in from the scene of the tragedy. Indeed there is testimony from at least two witnesses that all tires and wheels were stolen before the car was moved. Soon after the wreck Officer Jennings examined the car and testified the tires appeared all right.
But it is not certain that the blowout found in the tube the next morning occurred before or at the time the car left the paved surface. It might have occurred later, while the car was being wrecked. We have given careful consideration to the physical facts upon which appellants rely on this question of the blowout. They fall short of establishing the defense as a matter of law. Testimony of Phyllis Kirkendall that the car skidded around the last curve at the Erickson corner, a mile south of the Jordan curve, and weaved back and forth from then on is inconsistent with appellants' affirmative defense. Testimony of the witness Goad is also to the same effect.
Even if it appeared conclusively that the blowout occurred at the time claimed by appellants when the car left the paving, still we cannot say as a matter of law that it was the sole proximate cause of the accident. If Arnold was reckless in one or both of the respects claimed and such recklessness concurred or combined with the blowout to cause the accident, the blowout would not constitute a defense. Johnson v. McVicker, 216 Iowa 654, 657, 247 N.W. 488, and citations.
McDonald v. Dodge, 231 Iowa 325, 1 N.W.2d 280; Wright v. What Cheer Clay Prod. Corp., 221 Iowa 1292, 267 N.W. 92; Newville v. Weller, 217 Iowa 1144, 251 N.W. 21, and other cases cited by appellants on this branch of the case are clearly distinguishable on their facts.
II. It is claimed the evidence is insufficient to show reckless operation of the Tesdall car, but that on the contrary affirmative acts of care appear. Appellants rely upon Brown v. Martin, 216 Iowa 1272, 248 N.W. 368; Mayer v. Sheetz, 223 Iowa 582, 273 N.W. 138; McDonald v. Dodge, 231 Iowa 325, 1 N.W.2d 280; Roberts v. Koons, 230 Iowa 92, 296 N.W. 811, and other decisions. We hold, however, that the issue of recklessness was for the jury.
Phyllis Kirkendall testified that Arnold, Archie and Obert acted silly before the accident; that at the Erickson corner Arnold speeded up; that she and Ellsworth asked him to slow down; that the car skidded all the way around the last curve at Erickson; that after passing a truck the car went off the pavement and weaved back and forth; that it clipped something which the jury could find was one of the guard posts on the east side of the roadway. From about this point, the driver lost control of the car, as heretofore described. The girl also said she was frightened; that Ellsworth told Arnold as they approached the curve to slow down, that there was a curve ahead, that he was going over 80, too fast to make it and would kill them all; that Arnold paid no attention to these warnings.
Much of the girl's testimony as to the manner in which the car was driven was...
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