Mickelson v. Forney

Decision Date14 June 1966
Docket NumberNo. 52046,52046
Citation143 N.W.2d 390,259 Iowa 91
PartiesMichael D. MICKELSON, Appellant, v. David FORNEY and Arlo Forney, Appellees.
CourtIowa Supreme Court

Hutchison, Hurst & Duggan, Sioux City, and Floyd E. Page, Denison, for appellant.

Edward S. White, Carroll, for appellees.

STUART, Justice.

Plaintiff brought this action to recover damages for injuries to his person and property alleged to have resulted from a two car collision. Defendant, Arlo Forney owner of the car driven by his son David, the other defendant, filed a counterclaim. The case was submitted to the jury which returned a verdict for defendants on plaintiff's claim and for plaintiff on defendant's counterclaim. Plaintiff has appealed.

The collision occurred February 17th, 1964 at 4:30 p.m. on an unnumbered county road running north and south in Ida County. It was a clear day and the road was dry. Plaintiff, driving his pickup in an easterly direction on a farm lane, entered the county road, turned to his right and proceeded in a southerly direction. The pickup was struck from the rear by a 1963 Rambler owned by the defendant Arlo Forney and driven with his consent by his son, David. Visibility for both vehicles was limited by the crest of a hill 300--350 feet north of the farm lane. About 100 feet south of the lane, the road narrowed to a 16 foot bridge. After the pickup was struck, it went off the right hand or west side of the road, across a gully and hit a tree. The material facts in dispute were whether the Rambler was over the hill and in sight of the pickup when it entered the highway, whether the pickup was in the center of the road or on its right side at the time of the collision, and how far south of the lane the collision occurred. (Plaintiff--65 to 70 ) (Defendant--18 )

I. Plaintiff claims the trial court erred in refusing to submit to the jury the count of his petition based on the doctrine of res ipsa loquitur. This is a rule of evidence under which an inference of negligence is permissible when an injury is caused by an instrumentality under the exclusive control of defendant and the occurrence is such as, in the ordinary course of things, would not happen if reasonable care had been used in the operation of such instrumentality. It is of limited scope, ordinarily to be applied sparingly and with caution and only where the facts and demands of justice make its application essential. Dorcas v. Aikman, Iowa, 143 N.W.2d 396, filed June 14, 1966, and cases cited therein.

In Dorcas, plaintiff sought to apply res ipsa to a situation in which her deceased was struck from the rear when he was making a turn to the right off of the highway without signalling. We affirmed the trial court's refusal to submit the case to the jury on that theory. We feel the case is analogous to the case at bar and hold the trial court was correct here in refusing to submit this case to the jury on res ipsa loquitur.

The driving of an automobile into the rear of another under these circumstances is evidence of excessive speed, lack of control, failure to keep a proper lookout and other acts of negligence which were submitted to the jury. Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321, 325. However, this does not mean the circumstances are such that the res ipsa doctrine is applicable.

'The res ipsa rule should not be confused with the proposition that negligence like other facts, may be proven by circumstantial evidence. Existence of circumstantial evidence of negligence in a particular case does not mean the res ipsa doctrine is applicable in that case. In considering the applicability of res ipsa loquitur, the question whether the particular occurrence is such as would not happen if reasonable care had been used rests on common experience and not at all on evidence in the particular case that tends in itself to show such occurrence was in fact the result of negligence. Eaves v. City of Ottumwa, supra, and citations at page 970 of 240 Iowa, page 769 of 38 N.W.2d.' Shinofield v. Curtis, 245 Iowa 1352, 1360, 66 N.W.2d 465, 470, 50 A.L.R.2d 964.

In dorcas v. Aikman, supra, we quote with approval from 38 Am.Jur., Negligence, Section 300, page 997: 'The doctrine does not apply where the agency causing the accident was not under the sole and exclusive control of the person sought to be charged with the injury. If it appears that two or more instrumentalities, only one of which was under defendant's control, contributed to or may have contributed to the injury, the doctrine cannot be invoked.'

In none of the limited number of Iowa automobile cases in which the doctrine has been applied has there been any evidence which would indicate conduct of the plaintiff may have been a contributing factor. Schneider v. Swaney Motor Car Co., Iowa, 136 N.W.2d 338; Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321; Gilbrech v. Kloberdanz, 252 Iowa 509, 107 N.W.2d 574; John Rooff & Sons, Inc. v. Winterbottom, 249 Iowa 122, 86 N.W.2d 131; Savery v. Kist, 234 Iowa 98, 11 N.W.2d 23; Harvey v. Borg, 218 Iowa 1228, 257 N.W. 190.

In Schneider v. Swaney Motor Car Co., supra, plaintiff was struck from behind 'while stopped for a traffic light'. In Ruud v. Grimm, supra, plaintiff had been stopped for a minute to a minute and one-half waiting for traffic so he could make a left hand turn when he was struck from behind. In Savery v. Kist, supra, an unattended truck ran down hill and damaged a building. In Harvey v. Borg, supra, plaintiff was driving at a speed of 18 to 20 miles per hour on a wide street with no traffic and an unobstructed view when struck from behind.

We refused to apply the doctrine under the facts in Shinofield v. Curtis, 245 Iowa 1352, 66 N.W.2d 465, 50 A.L.R.2d 964, when a truck from which deceased had alighted apparently ran over her. We said: '* * * evidence which may show negligence in this particular case is not to be considered in determining the presence of this second foundation fact. (Occurrence, in the ordinary course of things, would not happen if due care had been used.) The question is to be determined from common experience.' Page 470.

Common experience tells us that when an automobile is changing its position on the highway, either by turning off or coming onto the highway, the conduct of the operator of that car is often a contributing cause to the collision. At least a collision occurring under such circumstances is not such that one can say it would not ordinarily happen but for the negligence of defendant.

Language in Shinofield, which dealing with pedestrians, illustrates the reason we believe res ipsa is not applicable here.

'There are of course countless occurrences in which a pedestrian or person standing in part of a street devoted to vehicular traffic is struck and injured by a motor vehicle. In the ordinary course of things many such injuries are doubtless caused by the motorist's negligence. Perhaps there are more occurrences of this kind where the injured person is ordinarily at least partly to blame. We think there are many such occurrences, especially at night, in which the motorist is not ordinarily negligent. * * *

'We fear plaintiff's counsel have mistakenly assumed that because in this particular case there is evidence defendant, who was in control of his truck, negligently caused the injury, res ipsa loquitur applies. We have tried to explain this does not follow.' Page 471.

No cases have been cited in which res ipsa loquitur has been applied under similar facts and we do not believe it should be.

II. Appellant contends there is evidence David Forney, who is restricted to driving with glasses, was not wearing them at the time of the accident and this issue should have been submitted to the jury under proper instruction. We do not agree. The only evidence on this point is that of the passenger in plaintiff's pickup truck. He testified: 'I knew this boy before and he always wore glasses and I don't recall him wearing his glasses that day.' This is specifically denied by defendant.

The driver was not observed until after the accident which was of such force as to cause substantial damage to both vehicles. The witness had received serious injury and became unconscious shortly after observing the driver. To submit this issue to the jury under these circumstances and on such uncertain testimony would permit them to speculate improperly on this issue. The fact that a person did not have on glasses after a serious automobile accident is in and of itself no proof he did not have them on at the time of the collision.

Appellant did not allege David Forney was negligent in driving without his glasses and the court could not properly have submitted this charge as a specification of negligence even if supported by the evidence. Perry v. Eblen, 250 Iowa 1338, 1346, 98 N.W.2d 832 and cases cited therein.

III. Appellant contends no proper foundation was laid for the admission of the opinions of the highway patrolman and sheriff as to the point of impact. The patrolman testified he had received accident investigation training and at the date of this accident had investigated about 150 accidents. He said: 'There were marks leading from approximately the center of the road off south to the south and west side of the roadway and at the bottom of the gorge and in the direction of the marks was the pick-up. We connected these marks with the pick-up. At the beginning of these marks were two kind of dish marks or gouge marks or scuff marks, in the road which appeared to have come from rear tires of the pick-up.

'These scuff marks extended from the driveway 91 feet south to where the left front tire went off the highway. From the scuff marks or gouges and tracks, I have an opinion as to where the point...

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