Montanick v. McMillin

• Decision Date: 21 June 1938
• Docket Number: No. 44247.,44247.
• Citation: 225 Iowa 442,280 N.W. 608
• Parties: MONTANICK v. McMILLIN.
• Court: Iowa Supreme Court

225 Iowa 442

280 N.W. 608

MONTANICK

v.McMILLIN.

No. 44247.

Supreme Court of Iowa.

June 21, 1938.

Appeal from District Court, Wapello County; Charles F. Wennerstrum, Judge.

Plaintiff, a minor, by his next friend, his father, commenced this action against Fred McMillin, for damages in amount of $27,075, for personal injuries alleged to have been sustained because of defendant's negligence in the operation of a truck. Trial to a jury, which returned a verdict in the amount of $5,000 for plaintiff. Defendant has appealed. Opinion states the facts.

Affirmed.

ANDERSON, J., dissenting.

McNett, Kuhns & Brown, of Ottumwa, for appellant.

McElderry & Lawrence and Jones & White, all of Ottumwa, for appellee.

MITCHELL, Justice.

The accident involved in this case occurred at about 3:25 P. M. on November 21, 1935, within the city limits of Ottumwa, on the south approach to the Vine Street bridge crossing the Des Moines River, at a place where a driveway, leading from a rock quarry, enters the approach.

Vine Street runs in a northeasterly and southwesterly direction, but in the record is usually indicated as north and south, and that is the way we will refer to it. Where it crosses the Des Moines River there is a bridge that has a roadway for two-way traffic but is hardly wide enough for three cars to pass at the same time. Along the east side is a sidewalk, about five feet wide, provided for pedestrians. The girders are on the west of the walk and on the east it is protected by a metal fence or guard rail. Extending south from the bridge for a considerable distance (approximately several blocks) is a dirt-fill, which is used as the south approach. It has a fence or guard rail on either side. The road for vehicular travel is an extension of the roadway of the bridge. On the east side of the fill there is a sidewalk, which extends south from the sidewalk of the bridge. The roadway where the vehicles travel on the approach is seventeen feet in width and the sidewalk to the east of it is five feet in width. Commencing at a point 77 feet south of the south end of the bridge proper, on the east side, there is an opening which extends about eighteen and a half feet north and south, to give access to a driveway leading east from the approach to what is designated as the rock quarry. The quarry driveway as it extends east from the opening is filled ground and not surfaced, and the traveled portion of it is sixteen feet and six inches from shoulder to shoulder. Leaving the approach of the bridge, going east, the quarry driveway slopes downward. This road is used as an access to the rock quarry which has for some time been operated by Wapello County to secure materials used in building and repairing highways.

On the day of the accident a truck, owned by Wapello County and driven and operated by Fred McMillin, was returning to the quarry to secure another load of crushed rock after having delivered one to the place where the highway improvements were being made.

Verne Montanick, who was sixteen years of age, and a student at the Ottumwa High School, was returning to his home on the south side of the Des Moines River, the high school being on the north side. He was riding a bicycle which he had for some time used in going back and forth from home to school. He was accompanied by William Dungan, a boy of about the same age, also a student at the high school, who too was riding a bicycle. As they crossed the bridge these two boys were riding on the sidewalk provided for pedestrians, on the east side of the Vine Street bridge, Verne being ahead of his companion about fifteen or twenty feet. “They were traveling about as fast as a boy could run,” is the way they described it. There is, of course, a dispute in the testimony, which we will later go into in detail. According to the boys' story, as they crossed the bridge and approached the south end thereof, they noticed a dump-truck traveling west, coming out of the quarry to the approach of the bridge. At that time Verne was just leaving the bridge, which was about 77 feet north of the opening to the quarry road. He slowed down so that the truck could pass out of the quarry driveway onto the approach.

Fred McMillin was driving a truck belonging to Wapello County. It was a Ford V-8, 1 1/2 ton, 1933 model, with a long wheel base. It had a homemade bed, with a bottom drop, and was capable of hauling about four yards of rock at a time. The length of the box was nine feet, four inches. The sides were made of two inch boards, set with 4x4 braces. The bed was attached to the chassis of the truck by clamps. There was a cab, the back of which was about four inches in front of the bed. The cab was enclosed and protected like any truck. There was a window in the back, which was stationary, and there were windows at the sides. There was a door on either side. McMillin was driving south on the west side of the bridge, and, he testified, before he turned the truck he opened the door on the left-hand side and looked back. However, there is evidence from which the jury could find that this was some ways back on the bridge, for McMillin testified that he did not see the boy. In addition to this, the negligence alleged was the failure to maintain a proper lookout at the time he drove across the sidewalk, where this accident happened. Had McMillin looked to the left at that point he was bound to have seen the boy, but according to his testimony, he never did see the boy. When he drove into the opening of the quarry road he noticed quite a bump, which he said he thought was unusual, stopped the truck, got out, and found that he had run over Verne Montanick. He immediately took the boy to the hospital, where it was ascertained that Verne was very severely injured, having several fractures. He was confined to the hospital for a period of weeks.

As a result of the accident this lawsuit occurred. It was brought by Verne Montanick by his next friend, John Montanick, his father, against Fred McMillin, the driver of the truck, and Wapello County, seeking damages in the amount of $27,075. There was a trial to the jury. Before the case was submitted plaintiff dismissed the cause of action as against Wapello County. The jury returned a verdict of $5,000 against Fred McMillin. Being dissatisfied, he has appealed.

I. The first question that confronts us here is appellant's contention that the lower court erred in not sustaining the motion to direct a verdict, because “the evidence showed that Verne Montanick was guilty of negligence which contributed to the accident and the injuries sustained by him.”

It is the contention of appellant that there is little dispute in the evidence. True, there is not the dispute in this case we usually find in automobile cases. However, in regard to how the accident really happened there is a sharp conflict between the parties and the witnesses. It is the appellant's claim that when he drove across the Vine Street bridge, into the entrance of the driveway to the rock quarry, he made a sharp turn and that that put his truck in front of the boy as he came along on the bicycle. The peculiar thing about this theory is that if he, McMillin, made that sharp turn and drove directly into the entrance he should have been able to see the boy as he rode along the sidewalk. It must be kept in mind that the boy had a perfect right to ride upon the sidewalk; and that appellant knew he was going to cross a sidewalk used by pedestrians and others; and that he did not see the boys on their bicycles. It is the contention of the appellee, and there is evidence to bear it out, that appellant curved into the opening to the approach to the quarry, and that by so doing he drove up behind Verne Montanick rather than in front of him. The boys both testified they did not see the truck until Verne's bicycle was practically up against the truck. He was riding slowly, grabbed the box of the truck and hung on for some little distance, finally losing his hold and falling under the rear wheel.

[1] Appellant places great reliance upon the fact that the boys testified there was a sharp, cold wind blowing from the southwest and that Verne, in order to keep his ears warm, put his hand to the side of his head. He would have you understand the evidence shows the boy was covering his eyes. We do not so read it. In fact, Verne testified that he changed hands, putting his hand over his right ear at one time and then shifting to the other hand and putting it over the other ear. Clearly, there is a dispute in the record in regard to this, and it was for the jury to pass upon.

In the case of Perkins v. Schmit Const. Co., 215 Iowa 350, at page 353, 245 N.W. 343, at page 345, this court said:

“Under the assumption aforesaid, it now becomes necessary to determine whether Milford Perkins at the time in question was guilty of contributory negligence. Generally speaking, contributory negligence is peculiarly a question for the jury, rather than for the court, to decide. Murphy v. Iowa Electric Company, 206 Iowa 567, 220 N.W. 360, and cases therein cited.”

We read, in the case of Holderman v. Witmer, 166 Iowa 406, at page 411, 147 N.W. 926, at page 928:

“It is urged by the appellee that the plaintiff failed to prove want of contributory negligence. This question was not considered by the trial court. If the point were well taken, however, it would furnish a sufficient reason for refusing a new trial and affirming the case. We are satisfied, however, that the point is not well taken. * * * The fact that the automobile came from behind, that it was turning in from Locust street, that it was widening the zone of danger by moving diagonally southeast, are all circumstances favorable to the decedent on the question of contributory negligence. It is sufficient to say briefly that, the evidence being sufficient to go to the jury on the question of Larson's negligence, and no conclusive contributory negligence being disclosed, ...