McClure v. Richard

• Decision Date: 22 November 1938
• Docket Number: 44374.
• Parties: McCLURE v. RICHARD et al.
• Court: Iowa Supreme Court

282 N.W. 312

225 Iowa 949

McCLURE v. RICHARD et al.

No. 44374.

Supreme Court of Iowa.

November 22, 1938

Appeal from District Court, Wayne County; Homer A. Fuller, Judge.

Action at law for damages for personal injuries claimed to have been caused by the negligence of the defendants. The opinion states the facts. From an order directing a verdict in favor of the defendants and entering judgment thereon, the plaintiff appeals.

Affirmed.

G. C Stuart and A. V. Hass, both of Chariton, for appellant.

Hallagan, Fountain, Stewart & Cless, of Des Moines, and T. W Miles, of Corydon, for appellees.

DONEGAN, Justice.

On January 6, 1937, the plaintiff, W. A. McClure, was riding from Des Moines to Chariton, Iowa, on paved highway No. 69, in a closed delivery type of truck owned and driven by his son-in-law, W. L. Ruddell. The doors of the truck were in the rear end and opened outward from the center, and the truck was loaded with merchandise. When they left Des Moines about 6:30 P. M. the weather was dark and misty, and as they proceeded on their way the mist began to freeze on the windshield and to form a coat of ice on the paved road. When Ruddell had reached a point some distance north of Indianola he stopped to remove the ice from the windshield. Before coming to a stop he had pulled his truck either completely or partially off the pavement onto the west or right shoulder of the road. The place where the truck was stopped was about a quarter of a mile south of the summit of a downward slope in the road, and the headlights and taillight on the truck were lighted. While the truck was standing in this position a Chevrolet sedan owned by the defendant, Forest Richard, and driven by the defendant, Herman Richard, its sole occupant, came down the slope from the north and struck the left rear end of the truck. The impact of this collision swung the rear end of the truck toward the east and when the Richard car came to a stop it was standing on the west half of the pavement, facing south or slightly southeast, with the left front portion perhaps slightly to the east of the center line of the pavement, and was approximately east of the rear end of the truck, and the truck was facing approximately west or slightly northwest and, with the exception of a part of the rear end which extended out over the west edge of the pavement, was standing on the west shoulder of the road. At the time of the collision, the plaintiff, McClure, was seated in the cab of the truck on the right side of the seat and was not injured. After the collision the defendant, Herman Richard, got out of the Chevrolet sedan and, after a few words had been exchanged between him and Ruddell, he suggested that they had better get straightened out there because somebody else might come along any minute and tear into them. Richard then got into his car and moved it from the pavement to the west shoulder of the road south of the truck.

When the Richard sedan struck the Ruddell truck and swung the rear end to the eastward, the doors at the rear were jarred or forced open, a few sacks of potatoes fell out onto the pavement, and some of the merchandise in the truck appears to have been forced toward the rear end. After the conversation between Richard and Ruddell, in which Richard had suggested that they get straightened out there before some other car might come along and hit them, it appears that Ruddell gave Richard some assistance in parking his car on the west shoulder of the road south of the truck and then returned to his truck. About the time Ruddell returned to the truck the plaintiff, McClure, got out of the right side of the cab, went along the north side of the truck to the rear thereof, and he and Ruddell became occupied in trying to get the sack of potatoes, which had fallen out onto the pavement, back into the truck. Before replacing the potatoes in the truck, they were standing at the rear thereof and endeavored to push the other merchandise toward the front of the truck, in order to make room for the potatoes, and, while they were thus engaged, the plaintiff looked to the north and saw another car approaching them at a distance of perhaps 200 feet. About this same time someone shouted that a car was coming and plaintiff hurriedly left the rear end of the truck and had reached a point on the south side thereof when the approaching car struck the rear end of the truck and threw it around southward and against the plaintiff, causing the personal injuries for which damages are sought in this action.

The car which struck the truck, as just described, was owned and driven by Minor Stansell of Osceola, Iowa, and action was originally brought by plaintiff in the district court of Clarke county, the county of Stansell's residence, and Herman Richard, Forest Richard, and Minor Stansell were all named as defendants. The defendants Herman Richard and Forest Richard filed a motion to strike the name of the defendant, Minor Stansell, on the ground that the negligence asserted against the defendants, Herman Richard and Forest Richard, and the defendant, Stansell, was not concurrent, and that the joinder of said causes of action was improper. Plaintiff confessed this motion, and thereupon the district court of Clarke County ordered the name of Minor Stansell and the cause of action against him stricken from the petition, and ordered that the cause of action against the defendants, Herman Richard and Forest Richard, be transferred to Wayne County, the County of their residence. Thereafter the plaintiff filed a separate petition at law against the defendants, Herman Richard and Forest Richard, in the district court of Wayne County, and the defendants filed a general denial, together with an affirmative plea that the sole proximate cause of the collision and resulting damage to plaintiff was the negligence of Minor Stansell. Upon the trial of the case, at the close of the plaintiff's evidence, the defendants filed a motion for a directed verdict, which was overruled. This motion was renewed at the close of all the evidence, and was then sustained. Pursuant to the court's order, a verdict was rendered in favor of the defendants and judgment entered thereon. From this judgment, and adverse rulings of the trial court, the plaintiff appeals.

One of the grounds of the defendants' motion for a directed verdict was: " That the plaintiff has failed to sustain and discharge the burden of proving that any act of negligence charged against these defendants as alleged in the petition was the...