Nielsen v. Wessels

• Decision Date: 15 November 1955
• Docket Number: No. 48807,48807
• Citation: 73 N.W.2d 83,247 Iowa 213
• Parties: Arthur S. NIELSEN, Appellee, v. D. R. WESSELS and Ralph William Wessels, Appellants.
• Court: Iowa Supreme Court

Page 83

73 N.W.2d 83

247 Iowa 213

Arthur S. NIELSEN, Appellee, v. D. R. WESSELS and Ralph William Wessels, Appellants.

No. 48807.

Supreme Court of Iowa.

Nov. 15, 1955.

Haupert & Robertson, Marshalltown, for appellants.

C. H. Block, Grand Rapids, Mich., and Harris, Van Metre & Buckmaster, Waterloo, for appellee.

BLISS, Justice.

Plaintiff, a man twenty-nine years old, had been employed to pull house trailers behind a motor vehicle, identified by the U. S. Army as a quarter-ton jeep, rigged especially for that purpose, from the factory at Flint, Michigan, to various destinations. On this trip he was pulling a 31-foot Palace Coach house trailer, eight-feet wide, to Shoshone, Wyoming. On April 18, 1952, after driving since early morning, he stopped and slept a few hours just west of Waterloo, and then proceeded on his journey in the late afternoon, in a westerly direction on pavel Highway No. 20 to about seven miles west of Cedar Falls. He had just come over a hill in the highway and was passing down its western slope. It was a clear day with a light breeze. The pavement was clear and dry.

On the same day, the defendant, Ralph William Wessels, twenty-two years old, who lived at Aplington, Iowa, and was engaged in farming and general trucking, with a ton and a half truck took a load of hogs, about noon, for George Kappel, a farmer near Kesley, to the Rath Packing Company at Waterloo, arriving there about three o'clock in the afternoon. On his return home on Highway No. 20, with Mr. Kappel riding with him and approximately five or six miles west of Cedar Falls, he approached plaintiff's trailer unit and followed it for a mile and a half or two miles, on a rising grade, before he had an opportunity to pass it. Testifying for defendants, he said: 'I didn't see any cars coming from the other direction. Then I honked my horn and was attempting to pass him, and I was going past him and got beside him and he kept coming over while I gradually turned off the pavement, too, with him, and by that time he hit me, and that's all I can say. I was approximately 30 feet behind him when I started honking all the time I was passing him. The trailer hit my stock rack about three feet from the front of the house trailer. My front wheels were ahead of the trailer house and baside the jeep. When the house trailer came over toward me I kept going over to the south to get away from him. I went way over on the grass; my outside duals were on the grass, and when the trailer hit me the duals were on the grass off the pavement. The front left part of the house trailer came in contact with the front end of the stock box at the corner. After that, I couldn't say whether there were any further collisions between the two vehicles; I couldn't really tell. I was headed for the ditch and that's about all I could tell. I felt a slight jar after that. I mean it shoved me toward the ditch. I really don't know what happened after I went into the ditch. I ended up on top of the jeep. One wheel of my truck was sort of resting on the hood, or the seat part of the jeep. At that time Mr. Nielsen was lying over on the shoulder. I didn't speak with Mr. Nielsen at that time, but after Foster (Highway patrolman) got there and put him in the ambulance then I spoke to him some. I rode with him to the hospital in the ambulance.'

Kay Brainerd was a hitchhiker riding in the jeep with Nielsen. He was in the Armed Services at the time of the trial, and was not available as a witness. Mr. Kappel also was not a witness for either party.

Continuing in direct examination, the witness, Ralph Wessels, said: 'I first became acquainted with Kay Brainerd when he was lying there by the truck. When I first talked with Mr. Nielsen, Mr. Brainerd was up there on the road by the ambulance, at the time of my conversation with Mr. Nielsen, standing right there by me. Mr. Nielsen said, 'Well, now I wonder what they will do to me.''

'Q. Was there any mention made at that time to a horn? A. Yes. As Nielsen was lying there and Brainerd was there, and he (Brainerd) said, 'We couldn't have heard a horn anyway because the jeep made so much noise they could hardly hear themselves talk in the jeep.'' This remark of Brainerd after Ralph Wessels had asked the plaintiff if he didn't hear him honking his horn was also testified to in the cross-examination of Wessels. Plaintiff, in his rebuttal testimony said he did not hear Wessels ask him if he didn't hear his horn.

Asked on which side of the black line, in the middle of the pavement, the house trailer was when it first hit his truck, the witness replied that the trailer was approximately eight inches south of the black line, and that at the time of the impact the left dual wheels of the truck were over on the green grass and dirt of the shoulder.

On cross-examination, Ralph Wessels testified that the box on his truck was 14 feet long and 7 1/2 feet wide; and: 'As I was going along behind Mr. Nielsen, he was going along all right. * * * He wasn't going too fast but going pretty good; I noticed that the trailer filled in the pavement pretty good, the whole north side of the pavement. My truck would fill up 7 1/2 feet of the pavement. On the normal pavement where you have no edges, if both wheels were driving right along the outside, and you were very careful, you would have about six inches between the two vehicles. There are edges or water spillways along the pavement * * * but I don't know how wide they are. * * * They are a part of the total width of the pavement. * * * I had room to pass the trailer by staying on the flat roadbed within the curved and rounded edge of the pavement, and that is what I did. I must have been going about 35 miles an hour following him and attempted to pass him. I was going about 40 when I got abreast of him. * * * I didn't notice anything like the rear or front end of the trailer bobbing up and down. * * * My truck was damaged at the front end mostly, and the side where it had scraped. * * * The trailer hit the box of the truck right in the front right hand side and corner. It came in contract with the iron edge of the box. * * * I don't know how far the truck box extended over the outside of the dual wheels, or whether it was a three-inch, six-inch, or a twelve-inch overhang. * * * My truck went over part of the spillway shown in the picture. Exhibit 5.'

There were two witnesses for defendants who saw the collision. Charles Hartgrave a welding steamfitter in the Hormel Packing House, at Austin, Minnesota, with his wife and three children, and his brother-in-law, Paul Knapp, of Shell Rock, Iowa, in his car, had been attending a funeral at Parkersburg, and about 4:30 or 5:00 o'clock in the afternoon were proceeding eastward on Highway 20 toward Cedar Falls. Both Hartgrave and Knapp were in the front seat.

Hartgrave testified: 'There were two hills there and a valley in between them, and we were coming over this one hill (the west one) and saw this truck and jeep and trailer coming down the road towards us, in a westerly direction. The truck started to pull around the jeep and the trailer and they were side by side for some distance, I don't know how far, and then it seemed all at once that the jeep and the trailer pulled up against the truck and hit the truck and they both went off the side of the road, and then a few seconds later we pulled up to the accident. I would say that at the point of impact, the trailer was over the middle line over toward the south side of the highway. I couldn't see that they came together more than once, but it was a sudden impact and they seemed both to cut across the road and went down into the ditch; they may have come together more than once, I don't know. The impact couldn't have been too far from that spillway, maybe a 100 ft. up from the spillway toward the hill (the east hill). I wouldn't say that the impact occurred too far south of the black line, maybe it was a foot over the line.'

The witness gave like testimony on cross-examination. He said that he was about a quarter of a mile distant when he first observed the approaching vehicles, and he slowed up considerably, anticipating difficulty ahead. He did not hear a horn at any time. He said: 'I didn't observe whether or not the trailer was tracking and going straight along behind the jeep as the truck attempted to pass it. I didn't observe the trailer swaying or anything. I could see that since the trailer was about eight feet wide and the truck approximately that, that they pretty well filled up the whole pavement. I don't know how far away I was; it was just that I saw the trailer and jeep hit the truck on the truck's side of the road. When the truck first came around, they were coming down the pavement side by side. The jeep and the trailer were on the north side and the truck on the south side of the road. The trailer was coming straight. I couldn't tell how far apart they were. At the distance I was away, it appeared to me they were almost touching each other. I think it was more a jackknifing, a quick turn that hit suddenly, rather than going side by side in pushing each other off. It looked to me as if there was a gradual moving over on the part of the jeep and all of a sudden there was a sharp turn and from this point on, it continued going to the left. * * * I don't know what threw the trailer out of control and across the road. I don't think there was anything prior to that time in the way of weaving or swaying to indicate that it was out of control. When I actually saw the impact I was about 900 feet or so away. I couldn't observe whether or not the jeep was riding up on the right curb at the time the truck started to pass. * * * It looked to me like the front end of the trailer hit the front end of the truck box. * * * It was quite an impact. * * * that was the only time that I saw the trailer come across the black line. * * * It appeared to me that the jeep and the trailer run into the...