McCrady v. Sino

Citation118 N.W.2d 592,254 Iowa 856
Decision Date11 December 1962
Docket NumberNo. 50715,50715
PartiesPaul McCRADY, Administrator of the Estate of Lorraine McCrady, deceased and Paul McCrady, Appellees, v. John SINO and Emil Marcucci, Appellants.
CourtUnited States State Supreme Court of Iowa

Messer & Cahill and D. C. Nolan, Iowa City, for appellants.

Clewell, Cooney & Fuerste, Dubuque, and Hart, Shulman, Phelan, Tucker & Ivie, Iowa City, for appellees.

MOORE, Justice.

This is an action for damages by Paul McCrady, Administrator of the Estate of Lorraine McCrady and Paul McCrady resulting from her death when Lorraine fell from the truck owned by defendant Emil Marcucci and driven by defendant John Sino. From judgment entered on the jury verdict of $6000 in favor of the estate and $2000 for Paul McCrady defendants have appealed.

Defendants have made eleven assignments of error which they group and argue in four divisions. They assert the trial court erred in (1) overruling defendants' objections to the testimony of three of plaintiffs' witnesses, (2) in submitting to the jury the issue of whether Lorraine was a guest or a nongratuitous passenger, (3) in not sustaining defendants' motion for a directed verdict, and (4) overruling defendants' motion to withdraw certain pleaded specifications of negligence.

For several years prior to 1958 Marcucci had owned, trained and shown ponies. He transported his ponies to horse shows in different cities in an International truck, the body of which he had converted from a flour truck. It had a closed-box type body, 14 feet long, 6 1/2 feet high and 8 feet wide with three stalls to the front and two stalls to the left rear. From the right rear to the center aisle the space was used to haul equipment and passengers. Marcucci had made a Dutch door in the middle of the right side of the box through which the ponies were loaded. It was made of 3/4 inch plywood, braced with iron, 6 1/2 feet high, 53 inches wide, with the bottom portion 4 feet high. At all times pertinent herein the top part was fastened open. The bottom part was hinged to the back and therefore opened to the front. At the outside front part of this door was a regular barn door hasp which went over a ring bolted to the truck body. When the lower door was closed, the hasp was affixed over the ring and an ordinary harness (or bull) snap placed in the ring. The evidence is in dispute as to whether a person standing on the floor of the truck could reach the snap from the inside.

During the morning of June 22, 1958, four ponies were loaded in this truck at Maquoketa for the Iowa City horse show. Marcucci's daughter, Annette, age 14, and Lorraine McCrady, age 13, occupied the space near the ponies. John Sino, an experienced operator, became the driver. He was on the trip to learn more about handling and showing ponies. His minor son and Marcucci rode in the truck seat. A stop was made at a Mt. Vernon oil station where Marcucci went to the rest room. Sino removed the snap, opened the side door and asked the girls if they wanted some refreshments which they declined. Marcucci returned and after being assured by the girls they were getting along all right, Sino closed the door, placed the latch over the ring, put on the snap, and both returned to the truck seat. After some inquiry from Marcucci about the side door and lock, Sino got out of the cab, checked the door and snap, and 'flipped it around'. Defendants disagree in their testimony whether the pin or hook of the harness snap went through the ring. The trip was then resumed toward Iowa City on Highway 261 to the Rapid Creek bridge about two miles north of Iowa City where it was later learned the accident happened. Three or four feet north of this bridge were several bumps. When trucks struck this point some shaking of the ground resulted. Sino drove the truck over the bridge at a speed estimated by defendants as high as 35 miles per hour.

As the truck made a stop in Iowa City, defendants' attention was called to the side door which was open. They investigated and found both girls were missing. The hasp and all parts of the door and lock were unchanged except the snap, which some of the evidence shows was rusty, was gone. It was never found thereafter. Defendants immediately started to retrace their route and as they approached the Rapid Creek bridge they learned an ambulance was taking the girls to an Iowa City hospital where both died within a few hours. Lorraine's body was found on the bridge 67 feet from the north end. Annette's body was found on the bridge several feet farther south.

I. Defendants contend the trial court erred in ruling on objections to the testimony of plaintiffs' witnesses, Lloyd Williams, J. M. Trummel and Richard Reddick. Lloyd Williams testified he had been a body shop foreman at Cedar Rapids for the preceding 7 1/2 years specializing in body work on trucks. For 24 years prior to that he had repaired cars and trucks. He stated he was familiar with the usual truck doorlocking devices and had frequently repaired or replaced worn or damaged truck door latches. Part of his evidence was:

'Q. Now, Mr. Williams, will you state whether you have observed in the past 7 1/2 years and particularly in the year 1958, whether there is any customary method used by persons having to do with the operation of van trucks such as shown in Exhibit 'G' (a photograph of the Marcucci truck) relative to the matter of fitting those trucks with door fastenings? A. All trucks in general highway use are equipped with accepted safety latching devices, usually top and bottom with a locking receptacle in the center.

'Q. Will you state whether in your experience with boxes of this type shown in the photograph Exhibit 'G' this is a customary or usual locking device for a door such as shown on the box of that truck, and was so customary and usual in and about this community in 1958? A. No, it wasn't.'

Defendants made timely objections that these questions called for the opinion and conclusion of the witness, the witness not having been shown to be qualified to express an opinion. The trial court properly overruled the objections.

While it is not conclusive, evidence of what is usual and customary is generally admissible on the issue of negligence. Webber v. E. K. Larimer Hardware Co., 234 Iowa 1381, 15 N.W.2d 286; Gibson v. Shelby County Fair Ass'n, 246 Iowa 147, 65 N.W.2d 433; Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 82 N.W.2d 82; Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167. A custom or usage in any particular trade or business may be shown, as a fact, by a witness who is qualified by knowledge and experience to testify to its existence. Anderson v. Ill. Cent. Ry. Co., 109 Iowa 524, 80 N.W. 561; Middleton v. City of Cedar Falls, 173 Iowa 619, 153 N.W. 1040; Alley, Greene & Pipe Co. v. Thornton Cr. Co., 201 Iowa 621, 207 N.W. 767; Gibson v. Shelby County Fair Ass'n, 246 Iowa 147, 65 N.W.2d 433. Williams was sufficiently qualified by knowledge and experience to state the customary method used in locking truck doors. He occupied such a position as to know of the existence of the custom as a fact.

The witness J. M. Trummel testified he was a professor of mechanical engineering at the University of Iowa and the holder of a Ph.D. in mechanical engineering. He was trained in basic areas of physics. He stated he observed mechanical deficiencies as a matter of mechanical design in the locking device used in closing and keeping locked the side door of the Marcucci truck in that it was a single locking device. He stated the best and accepted engineering way to provide surety of function of such a door is to use a back up or secondary device. He expressed an opinion the snap was inadequate and was the part which failed.

Sino's timely objections to this testimony as wholly incompetent and calling for opinions and conclusions were properly overruled by the trial court. Sino was fully aware of the locking device before the trip started and affixed the snap over the ring at Mt. Vernon. The rule is well established that opinion evidence is admissible if the subject matter is such that opinion evidence of an expert will aid the jury and if the witness is qualified to give an opinion. Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646; Moyers v. Sears-Roebuck & Co., 242 Iowa 1038, 48 N.W.2d 881. The opinions stated by Trummel and Williams that the locking device and snap were inadequate were clearly admissible although they passed on a controlling fact, or the ultimate fact which the jury was to determine. Grismore v. Consolidated Products Co., supra.

Plaintiffs called John Sino as a witness. He testified: 'to the best of my knowledge I did not state to any person that the girls, Annette and Lorraine, were in the back of the truck to keep the ponies quiet.' The plaintiffs then called highway patrolman Richard Reddick who testified he had talked to both Sino and Marcucci after the accident and in his opinion one of them told him the reason the girls were riding in the back of the truck. He was then asked what was said. Objection was made that the question called for mere speculation and conjecture and not competent to prove any issue in the case, and not competent or material to prove any issue against Sino. The trial court overruled the objection. Reddick then testified he had been told the girls rode in the truck for transportation of course, and also to keep the ponies quiet, to watch them during the trip to the horse show. Defendants assert the court erred in overruling the objection. No other evidence could have been as competent and material as to the purpose of occupancy as the expressions of Marcucci himself. The evidence was admissible as an admission ans went directly to the issue of plaintiff's decedent's status while riding in the truck. In Barish v. Barish, 190 Iowa 493, 495, 180 N.W. 724, 725, we said: '* * * any admission against interest must be...

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