Newman v. Hotz
| Decision Date | 04 April 1939 |
| Docket Number | 44620. |
| Parties | NEWMAN v. HOTZ. |
| Court | Iowa Supreme Court |
Appeal from District Court, Linn County; Chas. J. Haas, Judge.
An action for damages alleged to have been sustained by the plaintiff while riding as a passenger in a car being driven by her husband, such damage resulting from a collision with defendant's car which stood in the highway lane in which the plaintiff was proceeding. Defendant denied negligence and pleaded that the carelessness of the husband was the sole proximate cause of the injuries of which plaintiff complains. At the close of all the testimony, the court directed verdict for defendant. From judgment on verdict, plaintiff appeals.
Reversed.
Geo C. Claassen, of Cedar Rapids, for appellant.
V. C Shuttleworth, of Cedar Rapids, and C. C. Putnam and Max Putnam, both of Des Moines, for appellee.
The record presents the ordinary picture of this kind of an accident, with the usual contradictions found therein, but the jury could have found the facts to be narrated. On the afternoon of November 27, 1935, between 5:30 and 6 o'clock, plaintiff was riding as a passenger in her husband's car between Cedar Rapids and Center Point on paved primary highway No. 11. The husband's car was in good condition. He was driving in a southeasterly direction with the plaintiff sitting beside him. His speed was never above thirty-five miles per hour. The weather that day had been rainy and misty. When the plaintiff and her husband left Center Point, it was foggy and misty, with some snow. South of the place where the accident occurred, the incline of a viaduct over the tracks of a railroad began. The collision which resulted in plaintiff's injuries happened 600 or 700 feet from the beginning of the incline. The area at that place was low, and trees along the roadside tended to decrease visibility. The mist and fog was thicker and darker there than they had encountered before, though it had varied as they travelled to the place the accident occurred. The car had a windshield wiper before the driver, but not in front of the plaintiff. Her ability to see because of the accumulation of moisture on the windshield in front of her was greatly reduced and she couldn't see very far ahead of the car. She was looking ahead but didn't see the defendant's car until within about ten feet before the crash and at a time when the husband had started to go around. The defendant's car stood on the right hand side of the pavement in the line of plaintiff's travel. It was an old car, faded, dark and dirty, with no shiny metal to reflect light. While defendant says that the tail light was burning on his car, the jury could have found otherwise.
Defendant testified that he started on the journey on that day with the car apparently in good condition. Some distance north of the viaduct, he discovered that the car was not performing properly because, as he thought, a hind wheel had become locked. He succeeded in driving the car off onto the shoulder of the highway and left it there while he went back to get one Schrimper, a station attendant, to help him out of his difficulty. He returned with the station man in a Ford touring car to the place defendant's automobile was standing. A chain was attached and attempt made to get the stalled car started. This succeeded only to the extent that it was dragged back on the paving, and then the chain by which it was being towed broke. It being apparent that further attempts would be useless, defendant asked Schrimper to call a wrecker for him. Schrimper, before leaving, left with the defendant a small flashlight to be used, and which defendant says he did use, in giving a warning to other drivers passing that way.
While waiting for the wrecker, plaintiff and her husband came along and crashed into the standing car, with the result that plaintiff sustained the injuries for which she sues. There is some contention made by the defendant in argument that plaintiff had directed or assumed to direct the husband in the driving of the car, but the jury could have found against this claim. There are, of course, in the record many other details by which a jury would have had a more complete picture, but we have given enough of the general outlines to permit a disposal of the questions upon which we are called to pass.
The record presents four propositions which enter into a right conclusion. They are: First, whether the defendant was negligent; second, whether plaintiff's husband was negligent; third, was the plaintiff herself negligent; and fourth, was the husband's negligence the sole proximate cause of plaintiff's injuries?
The third inquiry, of course, includes the question of imputed negligence. A discussion of the evidence which the jury might have considered in reaching the answer to any and all of these propositions is unnecessary. It is sufficient to say that we find that the jury could have found that both the defendant and plaintiff's husband were negligent and will dispose of the case on that assumption. The court, in directing a verdict against the plaintiff, must have found either negligence in the plaintiff herself, or that the negligence of her husband was imputed to her, and that because of either or both, she was not entitled to recover; or the court may have taken the defendant's view that the husband's negligence was the sole proximate cause of the injuries, and as a result, she had not made a case.
The court's ruling on motion did not disclose the grounds upon which it placed, but from what occurred between court and counsel, we are inclined to the view that it was based on proximate cause. But upon whatever ground placed, we think that the court was in error, and that the case should have gone to the jury under proper instructions.
The assumption made above leaves for consideration the question of plaintiff's own negligence, imputed negligence and proximate cause. As to the plaintiff's own negligence, we are satisfied that a conclusion in her favor on that question would find support in the...
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