Mass v. Mesic, 51207

• Decision Date: 10 March 1964
• Docket Number: No. 51207,51207
• Citation: 256 Iowa 252,127 N.W.2d 99
• Parties: Arthur L. MASS, Administrator of the Estate of Lyle Dean Mass, Deceased, Appellant, v. John MESIC, Appellee.
• Court: Iowa Supreme Court

Page 99

127 N.W.2d 99

256 Iowa 252

Arthur L. MASS, Administrator of the Estate of Lyle Dean Mass, Deceased, Appellant, v. John MESIC, Appellee.

No. 51207.

Supreme Court of Iowa.

March 10, 1964.

Raymond E. Pogge, Council Bluffs, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee.

HAYS, Justice.

This case involves an intersection collision between a truck being driven by defendant and a bicycle being ridden by a ten year old boy, plaintiff's decedent, which resulted in his death. A jury returned a verdict for defendant and plaintiff appeals.

The defendant was the sole eye witness and except for the physical facts, the case rests very largely upon his testimony. The collision occurred about 6:30 P.M. on August 7, 1961, at the intersection of S. 18th Street and 25th Avenue in Council Bluffs, Iowa. 18th Street runs north and south, 25th Avenue runs east and west. Defendant was approaching this intersection from the north and entered the same at the rate of 15 miles per hour. Plaintiff's decedent, riding a bicycle, entered the intersection from the west. The collision occurred about the center of the intersection. Both S. 18th Street and 25th Avenue are narrow, dirt streets and at the time in question the northwest corner of the intersection was overgrown with corn and weeds so as to make the intersection a blind corner. There is some evidence that the bicycle at the time of the collision was 'just a trifle north of the center of 25th Avenue' and the truck was right at the center of 18th Street.

It is defendant's theory and he so pleaded in his answer that as 'he entered the intersection plaintiff's decedent riding his bicycle, darted from the west and directly into the path of defendant's truck' thus creating a sudden emergency.

Plaintiff pleaded and the trial court submitted to the jury two grounds of negligence upon the part of the defendant. (1) Violation of Section 321.319, Code of Iowa, I.C.A., and failure to keep a proper lookout. The jury was told that a violation of the statute would constitute negligence as would also a failure to keep a proper lookout. The jury was then told that defendant claimed a legal excuse for violation of the statute, if the jury should so find, and that if it should appear defendant was confronted with a sudden emergency not of his own making, he would not be held to the same accuracy of judgment as he would otherwise.

I. Proper objections were interposed to the giving of Instructions #10 and #11, being the ones on legal excuse and sudden emergency, and their giving is assigned as error. It should be noted that no issue is raised to he correctness of the instructions, but only as to whether under the record such instructions should be given. Whether such a face issue was raised?

The appellee argues and cites many recent cases of ths court to the effect that the nature and extent of an emergency is generally a fact question where there is substantial evidence to substantiate it, and is for the jury to determine. Luppes v. Harrison, 239 Iowa 880, 32 N.W.2d 809; McBeth v. Merchants Motor Freight, Inc., 248 Iowa 320, 79 N.W.2d 303; Paulsen v. Mitchell, 252 Iowa 65, 105 N.W.2d 603; Pinckney v. Watkinson, Iowa, 116 N.W.2d 258.

Appellant concedes the above proposition, urged by appellee, but asserts that each case must stand upon its own facts and that a scintilla of evidence is not enough to generate a jury question and that at best, under the record, only a scintilla of evidence as to a sudden emergency exists, citing Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696; Zuck v. larson, 222 Iowa 842, 270 N.W. 384; Bletzer v. Wilson, 224 Iowa 884, 276 N.W. 836; Wachter v. McCuen, 250 Iowa 820, 96 N.W.2d 597; Harris v. Clark, 251 Iowa 807, 103 N.W.2d 215.

It is not the province of the court to pass upon the weight or credibility of the testimony and where there is a substantial dispute in the testimony or where from the testimony, though undisputed, reasonable minds might differ, the same calls for a jury determination. The question arising in such cases, as here, is whether or not the facts present such substance or reasonable possibility.

The physical facts are above set forth and it appears without question that the defendant was well aware of them. What happened at the time of the collision is found solely in the testimony of the defendant. As to the physical...