Mundy v. Olds

• Decision Date: 02 May 1961
• Docket Number: No. 50236,50236
• Citation: 252 Iowa 888,109 N.W.2d 241
• Parties: Charles W. MUNDY, Appellee, v. Francis W. OLDS, Appellant.
• Court: Iowa Supreme Court

Page 241

109 N.W.2d 241

252 Iowa 888

Charles W. MUNDY, Appellee, v. Francis W. OLDS, Appellant.

No. 50236.

Supreme Court of Iowa.

May 2, 1961.

Johnson & Johnson, Knoxville, for appellant.

McMullen, Test & Baird, Des Moines, for appellee.

HAYS, Justice.

Plaintiff was struck and injured by a car being driven by defendant. A jury returned a verdict for plaintiff. Plaintiff moved for a new trial, asserting inadequate damages; the defendant moved for judgment notwithstanding the verdict, alleging contributory negligence at a matter of law. Defendant's motion was overruled. Plaintiff's motion was sustained and a new trial granted. Defendant appeals.

It is conceded the verdict is inadequate if defendant is legally liable, and this appeal is based solely upon the issue of contributory negligence.

The accident happened about 7 p. m., February 1, 1959, on Highway No. 14, just south of the Knoxville City limits. This Highway, at the place in question, has a 20 ft. slab of concrete and shoulders 8 to 10 feet wide. There are no curbs. The Highway runs generally north and south. Plaintiff, with his wife and infant child, were driving north and at the place of the accident his car ran out of gas. Observing a car approaching from the south, plaintiff got out of his car along the west side of it, attempted to stop this approaching car. It did not stop and in passing, it sideswiped the car and struck plaintiff. I. Appellant asserts error in the failure of the trial court to sustain his motion for a judgment notwithstanding the verdict, upon the ground that plaintiff, by placing himself in a known place of danger, was guilty of contributory negligence as a matter of law.

There is a sharp conflict in the record as to where appellee was at the time he was struck. It appears that there was a bank of snow on the shoulder, some 8 to 10 feet from the edge of the pavement, placed there by the removal of snow from the pavement. It seems to be agreed that appellee's car was so close to this snow that the right hand door could not be opened. Appellee and his wife state that car was entirely off of the pavement, and that when he got out of the car and stood by its side, in his attempt to stop defendant's car, he was at all times off of the pavement. The appellant and a deputy sheriff, called to the scene of the accident, state that the car was from a third to a half of it's width out on the paved portion of the highway.

Upon appeal the record is viewed in light most favorable to the one against whom the appeal is taken. Schwind v. Gibson, 220 Iowa 377, 260 N.W. 853; Gates v. City of Des Moines, 240 Iowa 775, 38 N.W.2d 96. Under this view of the record, appellant concedes we must assume that both plaintiff and his car were off the edge of the paved slab. He contends, however, that under existing facts, he clearly placed himself in a place of danger and failed to exercise due care for his own safety. The record shows the night was dark and the pavement covered with ice. Appellee, as he stood by his car carried no light and knew that the defendant's car was approaching at a speed of 55 to 60 miles per hour, according to his own statement, yet he made no effort to seek a place of safety.

No statutory violation is alleged by appellant and we find no violation of Sections 321.354 and 321.355, Code 1958, I.C.A., both of which deal with stopping upon a highway. Whether or not appellee, in view of the conflict in the testimony, exercised due care under the circumstances for his personal safety, presents a question upon which reasonable minds might well differ. There is substantial proof in the record supporting each party in his contention. It was clearly a fact question for the jury and this Court on appeal will not reweigh the evidence and substitute its opinion for that of the jury. Schoonover v. Fleming, 239 Iowa 539, 32 N.W.2d...