Mineke v. Fox

• Decision Date: 10 March 1964
• Docket Number: No. 51127,51127
• Citation: 126 N.W.2d 918,256 Iowa 256
• Parties: Edith MINEKE, Executrix of the Estate of William C. Mineke, Deceased, Plaintiff, v. Chauncey Joseph FOX, Defendant-Cross Petitioner and Appellant, v. H. F. MAURER, Cross-petitioning Defendant and Appellee.
• Court: Iowa Supreme Court

Page 918

126 N.W.2d 918

256 Iowa 256

Edith MINEKE, Executrix of the Estate of William C. Mineke, Deceased, Plaintiff, v. Chauncey Joseph FOX, Defendant-Cross Petitioner and Appellant, v. H. F. MAURER, Cross-petitioning Defendant and Appellee.

No. 51127.

Supreme Court of Iowa.

March 10, 1964.

Hart, Shulman, Phelan, Tucker & Ivie and Daniel W. Boyle, Iowa City, for appellant.

Jack C. White, Iowa City, for appellee.

Will J. Hayek, Iowa City, for plaintiff.

STUART, Justice.

The actual contestants in this action are Fox and Maurer. Plaintiff's parked car was damaged when struck by Fox's car which had gone out of control after colliding with Maurer's car. Plaintiff commenced action against Fox. Maurer was brought into the case on Fox's motion. Fox filed a cross petition against Maurer seeking indemnity or contribution in one count and compensation for damages to his automobile in another count. Plaintiff amended her petition to allege Maurer's negligence and the concurring negligence of Fox and Mauer. Before trial, it was stipulated that plaintiff was entitled to recover $517.41 from either one or both Fox and Maurer and the case was tried to the court for its determination of liability as between Fox and Maurer.

The trial court found in favor of Maurer and Fox appealed, claiming (1) the findings, verdict and judgment were not supported by the evidence and constitute an abuse of discretion, (2) Maurer was guilty of negligence as a matter of law, (3) the trial court erred in failing to grant Fox's motion for judgment notwithstanding verdict and motion for new trial on the ground that Maurer had pleaded last clear chance which was an admission of negligence.

The accident occurred at 4:30 p. m., November 30, 1961, at the intersection of Washington Avenue and Gilbert Street in Iowa City. Washington Avenue is a thoroughfare running east and west, and is protected by stop signs on Gilbert Street, which intersects it at right angles. Fox, 71, was driving his car in a westerly direction on Washington. Maurer, 74, entered Washington Avenue from the south after stopping at the stopsign. The collision occurred in the northeast quadrant of the intersection. The throttle on the Fox car jammed wide open and the car went out of control striking several parked cars, including plaintiff's, before running into a building.

The trial court found Fox 'failed to establish by a preponderance of the evidence each and all of the alleged grounds of negligence on part of Maurer. The evidence shows that the cross-defendant Maurer obeyed the stop sign, exercised proper lookout, was in his own lane of traffic, and had proceeded cautiously (maybe too cautiously) and the front part of his car had crossed north of the center line of Washington and that his car was at a dead stop when cross-petitioner Fox's car struck Maurer's car. That the evidence shows that Fox had not seen Maurer's car until within two feet of it and that said cross-petitioner Fox was guilty of negligence in the following respects: In failing to keep a proper lookout; in failing to have his car under control, and driving at an excessive rate of speed.'

Upon Fox's motion the court enlarged its findings to state: 'There was evidence in the record that defendant cross-petitioner Fox at and immediately prior to the accident, was traveling at a rate of 40 miles per hour. In the opinion of the court in view of the heavy traffic, the width of the street, and of other conditions then existing, said speed was unreasonable and improper, and that the same necessarily had considerable to do with the control of said person's car.' The court also specifically found Maurer was not guilty of any contributory negligence.

I. 'When considering findings of a court in a law action tried without a jury we will not weigh the evidence or the credibility of the witnesses. Such findings are entitled to the same weight as the verdict of a jury. It the findings are supported by substantial evidence they will not be disturbed on appeal.' Miller v. King, 240 Iowa 1336, 1338, 39 N.W.2d 307.

Were we free to weigh the evidence and consider the credibility of the witnesses, we probably would have reached a different result than the trial court. There is evidence from Fox, his wife and two completely independent witnesses which contradict almost every material finding of the trial court. Support for these findings can be found only in the testimony of Maurer himself, for no other witnesses testified on his behalf and he received no assistance from the independent witnesses. We will consider whether Maurer's evidence is sufficient to support the court's findings. He testified:

'At the time of the accident I was driving North so that if Gilbert is the North-South street that is the street which I was on. There was a stop sign at this intersection on November 30, 1961 and as I proceeded North and reached Washington Street I stopped for the stop sign at Washington and Gilbert Street. As I came to the intersection I stopped and I drove up slow and I looked East and I didn't see a car coming at all and I started on. That is I was driving and this flash, I saw it to the right of me. I socked the brakes down and stopped. I stopped for the stop sign and then went on ahead very slowly. I don't think I was--well, I wasn't moving at all when he hit me.

'Q. You said something about a flash. What was this flash? A. That was his car. It was just a flash to me, and----

'Q. Whose car? A. Fox's car.

'Q. From what direction was it coming? A. From the East.

'Q. When you first saw this Fox car coming from the east what did you do? A. Socked the brakes down. We didn't slide the wheels either, because I wasn't going fast enough.

'Q. How fast were you going when you first saw the Fox car? A. I don't believe I was going five miles an hour.

'Q. Did your car stop when you stepped on the brake? A. Oh, yes.

'Q. Tell us, was your car moving when the collision took place? A. No.

'At the time of the impact I was in about the center of the right lane on my right side. My car wasn't quite across the center of Washington Street when the impact took place although I examined it after I moved the car afterwards and there was a little glass that might have been over the center. A little bit of glass which he throwed it forward from the car. As to the damage to my car in the collision, there wasn't a thing damaged, only the metal around the two headlights. Not even a fender. It had clipped that metal around the headlights and popped both headlights out, and that was the right front fender. It never even marked my fender, just caught the metal. There are two headlights on the right side. * * *

'At the time of the collision the Fox car was traveling West and from my observation of the car I have an opinion as to his speed. It was just a flash to me. I would say 40 miles an hour. Boy, it was just a flash to me.'

On cross-examination he testified he stopped four or five feet before he got to the stop sign.

'From where I stopped I looked and then drove on. I looked to the East and both ways. On this occasion I looked both ways. * * * From the position where I was parked I would imagine I could see a little over a half a block would be as far as you could see in that case. * * * At the time I brought may car to a stop I was at the right side or on my right-hand side of the road about the center. From this position I looked to the right. After I looked to the right, I looked to the left and then started out slowly.

'Q. Where were you looking then? A. My driving, I suppose, and both ways,...