McBeth v. Merchants Motor Freight, Inc., 49065

• Decision Date: 13 November 1956
• Docket Number: No. 49065,49065
• Parties: Roland McBETH, Appellee, v. MERCHANTS MOTOR FREIGHT, Inc., Appellant.
• Court: Iowa Supreme Court

Page 303

79 N.W.2d 303

248 Iowa 320

Roland McBETH, Appellee, v. MERCHANTS MOTOR FREIGHT, Inc., Appellant.

No. 49065.

Supreme Court of Iowa.

Nov. 13, 1956.

Rehearing Denied Jan. 18, 1957.

Walters, Bump & Jordan, Des Moines, for appellant.

Mike Wilson and Patrick D. Kelly, Des Moines, for appellee.

OLIVER, Justice.

Plaintiff brought action for damages to his truck-trailer with which defendant's truck-trailer collided. Trial to the court resulted in judgment for plaintiff and this appeal by defendant.

Appellant's brief does not contain an assignment of errors. It states, merely, the following issues were raised in the trial: Was there competent evidence, (1) to sustain the finding of plaintiff's freedom from contributory negligence, (2) as to the value of plaintiff's tractor unit 'to allow the court to take judicial notice that the cost of repairs did not exceed the value' thereof; (3) as to the cost of repairs; (4) to sustain the finding of defendant's negligence? Each of the four divisions of appellant's brief is devoted to one of these questions. Although the brief does not comply with the requirements of 58 I.C.A. Rule of Civil Procedure, rule 344(a)(3), the questions will be determined. Under the established rule the evidence will be considered in the light most favorable to plaintiff.

Plaintiff's heavy tractor-trailer, loaded with steel, was enroute from Chicago to Des Moines on Highway 6, which has a paved slab 22 feet wide. West of Grinnell a blizzard obscured the view and covered the pavement with snow and ice. The driver turned the tractor-trailer around and started it east, to return to Grinnell. Apparently because of moisture in the distributor, the engine began to miss and sputter and soon went dead. The icy condition of the pavement and six inch high curbing thwarted the driver's attempts to turn the slowing vehicle from the pavement to the right shoulder and it stopped with its right wheels against the curb on the upward slope of a hill, about the middle of the slope and five or six hundred feet from the crest. This left open for traffic all the left (north) half of the pavement plus about three feet of the right half.

It was then about 4 a. m. The driver set out flares and at daybreak placed warning flags, one on the top of the hill, in front, one at the trailer and one 150 feet to the rear. In the meantime he tried to start the engine and to dry the distributor so it would function. Travel upon the pavement was blocked by snow and ice and no vehicles appeared until after a snowplow passed at about 11 a. m. Shortly thereafter defendant's truck-trailer came over the crest of the hill, traveling west, at a speed of about 15 or 20 miles per hour. 'It went into a jackknife after it came over the hill, and then slid all the way down the hill, 500 feet into my (plaintiff's) tractor unit.' A witness testified a 'jackknife' occurs when the trailer swings around and travels ahead of the truck.

I. Appellant asserts plaintiff's driver was guilty of contributory negligence as a matter of law in stopping the vehicle upon the paved part of the highway, in violation of section 321.354, Code of Iowa 1950, 1954, I.C.A. However, section 321.355 provides the preceding section shall not apply when the vehicle is so disabled that it is impossible to avoid stopping and temporarily leaving it in such position. We have interpreted the word impossible, as there used, to mean "not reasonably practicable." Boger v. Kellner, 239 Iowa 1189, 1191, 33 N.W.2d 369, 370; Heidebrink v. Messinger, 241 Iowa 1188, 1193, 44 N.W.2d 713. These cases, and authorities in general, hold that where, under similar conditions, the failure to remove the disabled vehicle from the pavement is not voluntary, such failure does not constitute negligence as a matter of law. See annotation in 15 A.L.R.2d 909. We so hold in the case at bar.

II. The judgment was for $739.71 for repairing the truck and $43.26 for towing charges. The court found its previous value exceeded the cost of repairs. Appellant complains there was no competent evidence of this 'so as to allow the court to take judicial notice of it.' There was no evidence of its dollar value, in so many words. However, the record shows the truck-trailer was large, regularly transported heavy loads from Des Moines to Chicago and return three times per week, and its rental value was $12.50 per day plus 11 cents per mile for expenses. Upon this basis the annual rental value would greatly exceed the cost of repairs. The proof of value might well have been more definite but we conclude it was sufficient to support the finding of the trial court. It was stronger than in Fischer v. Hawkeye Stages, 240 Iowa 1203, 1212, 37 N.W.2d 284; Uhlenhopp v. Steege, 233 Iowa 368, 371, 372, 7 N.W.2d 195.

III. Appellant asserts there was no competent evidence as to the cost of repairs because the witness was not qualified as an expert. This witness had worked on the repair job as a mechanic and at the time of the trial was assistant foreman of the repair shop. The evidence showed the collision resulted in damage to the front end of plaintiff's truck and both fenders and the grille were smashed. The itemized repair bill showed replacement of and repair to these parts. The work was done on a cost-plus basis. Whether the witness was qualified to testify to the charges and that the same were reasonable was a question resting largely in the judicial discretion of the trial court. Grismore v. Consolidated Products Co., 232 Iowa 328, 342, 5 N.W.2d 646. No abuse of such discretion appears here.

IV. Was there competent evidence of defendant's negligence? The record shows defendant's driver knew of the slippery condition of the ice covered pavement. It is conceded he...