Nicholson v. City of Des Moines

• Decision Date: 14 December 1954
• Docket Number: No. 48619,48619
• Citation: 246 Iowa 318,67 N.W.2d 533
• Parties: Giadys S. NICHOLSON, Administratrix with Will Annexed of the Estate of Winfred Vincent, deceased, Appellee, v. CITY OF DES MOINES, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 533

67 N.W.2d 533

246 Iowa 318

Giadys S. NICHOLSON, Administratrix with Will Annexed of the Estate of Winfred Vincent, deceased, Appellee, v. CITY OF DES MOINES, Iowa, Appellant.

No. 48619.

Supreme Court of Iowa.

Dec. 14, 1954.

Harold H. Newcomb, Frank D. Bianco and Don C. Swanson, Des Moines, for appellant.

Dickinson, Throckmorton, Keir, Parker & Mannheimer, Des Moines, for appellee.

THOMPSON, Justice.

I. This case was before us on a prior appeal, taken by the plaintiff from a verdict and judgment in favor of the defendant by direction of the court. We reversed, holding that the question of defendant's negligence was for the jury. Nicholson v. City of Des Moines, Iowa, 60 N.W.2d 240. The facts shown by the plaintiff's evidence are set out in some detail in our former opinion, and we see no good purpose to be served in going over them again. The defendant's first assignment of error raises the question of sufficiency of the evidence of negligence on the part of the defendant to generate a jury question. Our opinion on the first appeal is the law of the case and must be followed unless the evidence was materially different on the second trial, the record of which we now have before us for review. The only material difference we find is that the record now contains defendant's evidence, much of which tends to contradict plaintiff's case. But the rule that we must consider the evidence in the light most favorable to plaintiff is the same whether we have a case, as before, where a verdict was directed for defendant, or whether we have a case, as now, in which it is contended a verdict should have been so directed. Plaintiff's evidence was substantially the same on the second trial, and we are bound by our determination upon the first appeal that there was a jury question on the issue of defendant's negligence and proximate cause.

II. Next the defendant-appellant urges plaintiff failed to carry the burden of showing the freedom of decedent from contributory negligence. It is recognized that the no-eyewitness rule is in effect here and raises a presumption of due care on the part of the deceased. Clearly there were no witnesses to the accident which caused the death of Winfred Vincent. But defendant says the presumption is rebuttable, and contends it has been rebutted here. That the presumption may be conclusively overcome, see Crawford v. Chicago Great Western Railway Company, 109 Iowa 433, 80 N.W. 519, and Ames v. Waterloo & Cedar Falls Rapid Transit Company, 120 Iowa 640, 95 N.W. 161. It is urged that it is so overcome in the instant case by evidence of intoxication of the deceased at the time the accident must have occurred. This is supplied by the opinion of the driver of the bus on which Mr. Vincent rode to a point near the place where he met his death by falling into an unguarded hole near the city sidewalk; by evidence he had frequented a tavern for some hours during the evening; and by the testimony of Dr. Albert Shaw, a licensed physician who was at the time coroner of Polk County. Dr. Shaw expressed the expert opinion that Mr. Vincent's death occurred about 3 a. m. on March 25, 1952. He had last been seen by the driver when he alighted from the bus at 11:30 p. m. on March 24th. His body was found in the pit about 7:30 a. m. on the 25th. Dr. Shaw was permitted to say that a blood test which he had caused to be made as a part of his autopsy on the body of the deceased showed 119 milligrams of alcohol per 100 cubic centimeters of blood. It is recognized that 150 milligrams per 100 cubic centimeters in the blood is evidence of intoxication. Dr. Shaw then testified alcohol is oxidized in the blood of a living person: 'As near as I recall there is no exact rate, but the average rate is around ten milligrams per hour.' Taking his opinion that death occurred at 3 a. m., at which time there were 119 milligrams per 100 cubic centimeters in his blood, and assuming he had lived without further drinking of intoxicating liquors since 11:30 p. m., or three and one-half hours, it is argued he must have then had 154 milligrams per 100 cubic centimeters because there had been three and one-half hours of oxidation at 10 milligrams per hour. Ergo, says the defendant, it is conclusively proven the deceased was intoxicated at the time of the fall into the pit. From this it is next urged contributory negligence is conclusively shown as a matter of law, because the intoxication must have contributed to the accident.

It will be observed defendant's position here rests upon a foundation of opinion evidence, expert and otherwise. The driver's statement that Vincent was intoxicated when he left the bus is clearly opinion. Dr. Shaw's estimate of the time of death is likewise opinion, as is his admittedly somewhat uncertain statement of the rate of oxidation of alcohol from the blood stream. Opinion evidence is seldom conclusive, even when uncontradicted. It is for the trier of the facts to evaluate it. We said in Wood v. Wood, 220 Iowa 441, 444, 262 N.W. 773, 774: 'It is the settled rule that the trier of fact is not ordinarily bound to accept the opinions and conclusions of witnesses, even though undisputed by other opinion witnesses.' To the same effect are Fowle v. Parsons, 160 Iowa 454, 141 N.W. 1049, 45 L.R.A., N.S., 181; Moore v. Chicago, Rock Island & Pacific Railway Company, 151 Iowa 353, 131 N.W. 30; and Fitter v. Iowa Telephone Company, 143 Iowa 689, 121 N.W. 48. It is apparent the showing of deceased's intoxication was not as conclusive as defendant thinks, but his condition was a fact question for the jury.

It is also true that even if the fact of intoxication were conceded there would still be a jury question whether it constituted negligence causing or contributing to his injuries and death. Intoxication in and of itself is not, as defendant seems to contend, conclusive evidence of contributory negligence. The true rule is laid down in Cramer v. City of Burlington, 42 Iowa 315, 320, where it is said:

'Whilst the being abroad in the streets of a city, in a state of intoxication, is not negligence as a matter of law, still, it is a circumstance or condition, from which the jury may find the existence of negligence as a fact.' Again, on page 322, is this:

'The jury should have been instructed that * * * the intoxication of plaintiff should not defeat his recovery, if it did not contribute to the injury which he sustained.'

Another case much in point on this question is Kingsley v. Mulhall, 95 Iowa 754, at page 755, 64 N.W. 659, at page 660, where it is said:

'Whether the plaintiff was under the influence of intoxicating liquors at the time of his fall, and whether that was caused in part or in whole by his drinking, were questions of fact to be determined by the jury.'

In Sylvester v. Incorporated Town of Casey, 110 Iowa 256, 81 N.W. 455, 457, we disapproved an instruction which told the jury: 'Intoxication is evidence of contributory negligence, and from it alone you may infer contributory negligence"; and we approved this statement by the Wisconsin Supreme Court in Ward v. Chicago, St. P., M. & O. Ry. Co., 85 Wis. 601, 55 N.W. 771: "Drunkenness is not negligence per se, nor unless it contributes to the accident or injury. If it did not, then it is a matter of no concern to the defendant."

The questions whether the deceased was intoxicated and whether such intoxication, if found to exist, contributed to his injury, were each for the jury. The inference of due care arising from the no-eyewitness rule was not destroyed as a matter of law by any evidence tending to show the deceased's intoxication. The court's instructions, particularly Instruction No. 12, properly submitted these questions to the jury.

III. Defendant predicates error upon the refusal of the trial court to give its requested instructions Nos. 6, and 7. These are too long to be set out in full. It is sufficient to say that, so far as they embody correct principles of law applicable to the facts in the case, they were in effect covered by instructions given by the court upon its own motion. Instruction No. 6 dealt largely with the question of sobriety, and we think the court adequately covered this matter, in accordance with our discussion in Division II, in the instructions given. Instruction No. 7 was in accordance with the instructions of the court. It did ask a more specific reference to the matter of deceased's knowledge of the condition of the walk, in this way:

'If Plaintiff's decedent, as a reasonably prudent person, knew, or in the exercise of ordinary care should have known of the hazard, if any, as it existed at the time he is alleged to have been walking on the cinder path in question, yet failed to exercise ordinary care for his own protection from such hazard, he would be guilty of contributory negligence.'

We think this sufficiently covered by Instruction No. 17, in which the court told the jury that in determining the matter of contributory negligence it might consider all the facts and circumstances surrounding the transaction. It is obviously not possible for the trial court to cover each facet of the evidence in detail in its instructions, and it should not emphasize certain aspects of the testimony of inferences to be drawn from the record while omitting others. The question of deceased's knowledge or means of knowledge was one of the 'facts and circumstances' shown by the record which the jury was directed to consider. We think no more specific reference was required. State v. Laughlin, 73 Iowa 351, 35 N.W. 448; Adami v. Fowler & Wilson Coal Company, 189 Iowa 995, 179 N.W. 422; Thomas v. Charter, 224 Iowa 1278, 278 N.W. 920.

IV. Defendant complains because the court permitted the introduction of evidence showing that the deceased had, some two years before his death, conveyed a residence property which he had owned in Des Moines to a daughter. Evidence of the value of the property was also received. We...