Miller v. Griffith, No. 48505

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HAYS
• Citation: 66 N.W.2d 505,246 Iowa 476
• Decision Date: 19 October 1954
• Docket Number: No. 48505
• Parties: David J. MILLER, Plaintiff-Appellee, v. Isaac W. GRIFFITH, Defendant-Appellant.

Page 505

66 N.W.2d 505 246 Iowa 476 David J. MILLER, Plaintiff-Appellee,
v.
Isaac W. GRIFFITH, Defendant-Appellant. No. 48505. Supreme Court of Iowa. Oct. 19, 1954.
Rehearing Denied Jan. 14, 1955.

Page 506

Jones, Cambridge & Carl, Atlantic, A. H. Bolton, Sioux City, for appellant.

J. R. McManus, Des Moines, Whitmore & Gaffney, Atlantic, for appellee.

HAYS, Justice.

Suit for damages arising out of a collision between two automobiles being driven by plaintiff and defendant. Each asks damages against the other based upon negligence. From a verdict and judgment for the plaintiff, the defendant has appealed.

The collision occurred on a bright, clear day at the intersection of Highway N. 6, and County Road No. 67, Cass County, Iowa. At this point the Highway runs east and west while the road runs approximately north and south. Plaintiff, driving a 1950 Buick, was going west on No. 6. Defendant, driving a 1934 Ford, was approaching No. 6 from the north on No. 67. Each had an unobstructed view and each saw the other approaching the intersection. The testimony places the speed of plaintiff's car between 50 and 65 miles per hour. The speed of defendant's car was between 5 and 10 miles per hour. While there is a dispute as to whether or not the defendant's car came to a complete stop as it reached No. 6, it is clear that to all practical purposes it did so.

Defendant testified that as he approached No. 6 from the north, he looked to the east and saw plaintiff's car coming at fast speed. He stopped and then proceeded on to the pavement in a southeasterly direction and was astride the center line at the time of the collision. He at no time attempted to stop after reaching the pavement. Plaintiff's testimony is that he saw defendant's [246 Iowa 479] car coming from the north when he was between a quarter and a half mile to the east of the intersection. He observed it come to a virtual stop. That it then pulled onto the Highway in a diagonal direction which placed it in the right or north lane. To avoid a head-on collision, he swerved his car to the left lane but could not avoid hitting it. The right front of plaintiff's car struck the right front of defendant's car and then crashed into an abutment to the southwest. Plaintiff sustained serious and permanent injuries and his car was demolished.

Ten propositions are assigned as a basis for a reversal. At the outset, and speaking personally and perhaps not for the other members of the court, the writer desires to say that appellant's brief and

Page 507

argument shows little, if any attempt to comply with Rule 344, Rules of Civil Procedure, 58 I.C.A., and but for the serious injuries sustained by the plaintiff and the size of the judgment against the defendant, $25,000, it would be his inclination to dismiss the appeal.

I. Error is asserted in the failure to direct a verdict. The motion is based entirely upon the issue of plaintiff's contributory negligence as a matter of law. There are no brief points but in the argument reference is made to various parts of the record dealing with the conduct of the plaintiff and then comes the general statement that 'under the testimony, the physical facts, the speed, the visibility and all other circumstances shown, plaintiff was guilty of contributory negligence as a matter of law'.

Contributory negligence and proximate cause are strictly issues of fact and ordinarily are for the jury except where, under the entire record, plaintiff's contributory negligence is so palpable that reasonable minds may fairly reach no other conclusion, and the question becomes one of law for the court. Kinney v. Larsen, 239 Iowa 494, 31 N.W.2d 635; Howie v. Ryder & McGloughlin, 244 Iowa 861, 58 N.W.2d 389. While we have not set forth the record at length, an examination thereof shows a situation upon which reasonable minds might well differ. It was properly submitted to the jury. The assignment is without merit.

II. It is claimed the court erred 'in overruling defendant's objection to testimony offered by witnesses Arthur Dickson, Aloysius Galowitsch, David J. Miller and Gerald T. Kroger on the grounds specifically stated in each objection. [246 Iowa 480] There are no brief points and the only authorities cited are 'Wigmore on Evidence; Jones on Evidence; Chamberlain on Evidence'. The argument sets forth some 70 questions, objections interposed, and in most cases the answers of the witness. No attempt is made at pin pointing any question, or any objection the overruling of which was error. Such assignment of error merits no consideration and none is...