Meggers v. Kinley

• Citation: 265 N.W. 614,221 Iowa 383
• Decision Date: 10 March 1936
• Docket Number: 42792.
• Parties: MEGGERS v. KINLEY.
• Court: United States State Supreme Court of Iowa

265 N.W. 614

221 Iowa 383

MEGGERS v. KINLEY.

No. 42792.

Supreme Court of Iowa.

March 10, 1936

Appeal from District Court, Jackson County; Frank D. Kelsey, Judge.

Plaintiff sued for injuries received by reason of collision with a parked truck on a highway, without lights or flares, in the nighttime. Verdict for plaintiff; defendant appeals.

Reversed.

Lane & Waterman, of Davenport, for appellant.

Miller & Claussen and E. C. Halbach, all of Clinton, for appellee.

PARSONS, Justice.

On June 11, 1933, between 9 and 10 o'clock p. m., the plaintiff Anna Meggers, while riding as a guest in the automobile of one Henry Moeller, traveling on highway No. 136 in an easterly direction toward Clinton, Iowa, was injured when the car in which she was riding collided with the rear end of a parked truck belonging to the defendant.

Plaintiff alleged in her petition: That the paved road at that place lay in a curved and turning direction, with a hill or slight elevation in the highway at this point. That the truck was parked on the right half of the pavement, around a curve and beyond the vision of persons operating their cars in an easterly direction on said highway, and in such a position that the driver of the Moeller car was unable to see said truck, or that it was occupying a paved portion of the highway, until the said Moeller was close upon the truck. Plaintiff alleged the truck was without lights, and that there were no flares or other warning lights or signals on or adjoining any portion of the truck, to warn persons traveling on the paved portion of said highway, and that the truck was carelessly and negligently allowed to stand on the paved highway, and constituted an obstruction thereon.

That as a result of the collision the plaintiff suffered a severe fracture of the left kneecap, same being broken in three places, a fracture and broken fibrous capsule covering the left kneejoint, and the ligaments in said left knee were sprained, and the injury was such that the entire kneejoint and capsule was filled with a large blood clot. The plaintiff also received severe bruises and cuts on the right leg, a severe cut over the right eyebrow, which would leave a permanent and noticeable scar, another cut on the center of the forehead between the eyes. That the tear sac was torn from her left eye, and plaintiff suffered from a severe surgical shock and considerable loss of blood. That the left side of her face was severely cut and bruised, as well as a cut on her left hand. Plaintiff was required to undergo two operations, and was confined to a hospital for about 5 weeks and, after returning to her home, was required to have the attendance of a practical nurse for another 4 weeks. That plaintiff was incapacitated for a period of approximately 9 weeks, and that she suffered pain and mental anguish, and was permanently and partially disabled by reason of the severe injuries to her left leg, and asked judgment for $15,322.75.

The defendant for answer denied that he was guilty of any negligence which caused or contributed to plaintiff's injury, and alleged that her injuries were caused by the negligence of plaintiff, and denied any indebtedness to plaintiff whatever.

An amendment to the petition set forth that the truck was parked just east of the top of the hill, so that the operator of a car traveling up the hill could not see the truck until nearly upon it. The plaintiff had for witnesses Henry Moeller, driver of the car, a physician, and herself.

Plaintiff was a woman 58 years of age at the time of the accident, and she was keeping house for Mr. Moeller. They were riding in his car when the collision took place, at about 9 o'clock, going to Clinton. The evening was rather dark and it was lightning once in a while. There were lights on the car in which plaintiff was riding. Plaintiff looked to the east as they were going up the hill, and observed no lights ahead on or about the truck, and did not see the truck until within 20 or 30 feet from it. Then she exclaimed, " Oh, there is a truck!" and Moeller slammed on his brakes, but did not stop until he ran into the rear of the truck. After they struck, they just sat there, unable to see anything, until a man came to her window and asked if she were hurt. She told him she was, and he walked away. That in a few minutes she noticed a light coming along on Mr. Moeller's side of the car, and they then could see the truck in front of them. Plaintiff claims she did not see the driver of the truck put the light there, but she heard him walking; she could see a light in their car, something she could not see before. Both of her knees were terribly hurt, and she had an awful jar in the back and could not move. Finally she was removed in an ambulance to the hospital, where she remained for a month, receiving treatment. She said her knee pained her all the time, and the doctor continued to call on her regularly for 6 or 7 weeks. Then she began to do her housework as housekeeper about 2 months after the accident, about September, 1933. The plaintiff said before the accident she was in good condition, had full use of her knees, and was able to do all her housework; that she received $4 per week and board and room; but that since September she had been unable to do the housework as before and was able to get only $2 a week. She claimed she could not bend, stoop over, climb, or anything like that; that she massaged her knee and leg every day, and could not bend it without pain. The plaintiff said the windshield and glass on both sides of the car in which she was riding were perfectly clear, and there was nothing to interfere with her view; that the car lights on Moeller's car were lit all the time, until the crash. That as they approached the top of the hill she saw a flash of lightning in the southeast, and immediately after she looked ahead and there was the truck. She said she always depended on Mr. Moeller to look ahead and watch while he was driving; that he was always a safe driver, and she never kept a lookout, but depended upon him to look while driving. She had ridden in the car with Moeller before the accident and knew he was a careful driver.

There was a conflict in the testimony as to whether the truck was standing east or west of the highest point on the highway; that is to say, which might be said to be the point where the rise from the west ended and the decline toward the east commenced. There was substantial testimony on each side as to the truth about these things; plaintiff contending that the truck was parked just over the rise in the highway as one travels east, and the defendant contending that it was parked to the west of the top of the rise. There was substantial testimony sustaining each contention. There was a disagreement as to whether or not there were flares on either side of the truck as required by chapter 83 of the 45th Gen. Assem. (section 1), which took effect by publication thereof on May 4, 1933. And in section 2 thereof it is provided that any person or persons violating the provisions of section 1 shall be guilty of a misdemeanor and punishable as such.

So the jury, under the evidence, had a right to find the facts as claimed by the plaintiff, or as claimed by the defendant, and the finding by the jury in either way is respected by this court.

We think the evidence in the case shows that the plaintiff was a guest of the driver of the automobile, and was riding with him as such. Moeller owned the car; had full management, control, and supervision thereof. Therefore his negligence, if any, would not be imputable to the plaintiff. Stilson v. Ellis, 208 Iowa 1157, 225 N.W. 346; Wagner v. Kloster, 188 Iowa 174, 175 N.W. 840.

There was a motion for a directed verdict made by the defendant at the close of the evidence, which motion was overruled, and the jury returned a verdict for the plaintiff. Proper exceptions were filed to the instructions and objections made thereto. We think the instruction in regard to contributory negligence is decisive of this case. In...