Oakes v. Peter Pan Bakers, Inc.

• Decision Date: 16 November 1965
• Docket Number: No. 51770,51770
• Citation: 258 Iowa 447,10 A.L.R.3d 247,138 N.W.2d 93
• Parties: , 10 A.L.R.3d 247 George Russell OAKES, Plaintiff-Appellant, v. PETER PAN BAKERS, INC., and Herman Bros., Inc., Defendants-Appellees and Cross-Petitioners (Herman Bros., Cross-Appellant) v. Aloysius DOTZLER and Charles Albert Thomas, Cross-Defendants. Lillian OAKES, Plaintiff-Appellant, v. PETER PAN BAKERS, INC., and Herman Bros., Inc., Defendants-Appellees and Cross-Petitioners (Herman Bros., Cross-Appellant) v. Aloysius DOTZLER and Charles Albert Thomas Cross-Defendants.
• Court: Iowa Supreme Court

Page 93

138 N.W.2d 93

258 Iowa 447, 10 A.L.R.3d 247

George Russell OAKES, Plaintiff-Appellant, v. PETER PAN BAKERS, INC., and Herman Bros., Inc., Defendants-Appellees and Cross-Petitioners (Herman Bros., Cross-Appellant) v. Aloysius DOTZLER and Charles Albert Thomas, Cross-Defendants.

Lillian OAKES, Plaintiff-Appellant, v. PETER PAN BAKERS, INC., and Herman Bros., Inc., Defendants-Appellees and Cross-Petitioners (Herman Bros., Cross-Appellant) v. Aloysius DOTZLER and Charles Albert Thomas Cross-Defendants.

No. 51770.

Supreme Court of Iowa.

Nov. 16, 1965.

Richard C. Turner, Council Bluffs, for plaintiffs-appellants George Russell and Lillian Oakes.

Hess, Peters & Sulhoff, Council Bluffs, for defendants-appellees, cross-petitioners and cross-appellants Herman Bros., Inc.

Smith, Peterson, Beckman & Willson, Council Bluffs, for defendant-appellee and cross-petitioner Peter Pan Bakers, Inc.

Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, for cross-defendant Aloysius Dotzler.

Connolly & Connolly, Council Bluffs, for cross-defendant Charles Albert Thomas.

GARFIELD, Chief Justice.

George and Lillian Oakes each sued Peter Pan Bakers, Inc., and Herman Bros., Inc., to recover for injuries resulting from motor vehicle collisions involving six vehicles on December 22, 1961, in a severe snowstorm on Highway 64 in the town of Underwood (population 337), 13 miles northwest of Council Bluffs. Plaintiff-husband (herein called plaintiff) sued to recover for injuries to his person and Ford auto. His wife sued to recover for loss of consortium resulting from the personal injuries. The cases were consolidated for trial resulting in judgment on jury verdicts for defendants.

Plaintiff's appeal assigns error in some rulings on evidence, instructions to the jury (including one form of verdict), and overruling his motion for new trial. We find no reversible error in any respect assigned and argued.

The six vehicles were all proceeding south on the paved highway. On the west side was a snow-covered bank of earth four to eight feet higher than the highway, 250 to 300 feet in length. The accident occurred near or somewhat north of the center of this area. The first vehicle, to the south, was Dotzler's Chevrolet. It was either stopped or moving five to ten miles per hour because of lack of visibility due to snow blowing onto the highway from the bank to the west. Thomas, with no visibility, drove his Ford into the rear of Dotzler's car, about half on the paving and half on the right (west) shoulder. Terry's pickup struck the rear of Thomas' Ford when the pickup was struck from its rear by plaintiff's Ford.

Plaintiff insists his car was forced into the pickup by the impact from Peter Pan's bakery van driven by Tyler. The evidence would permit a finding plaintiff's car struck Terry's pickup before the car was struck by the bakery van. The sixth vehicle was Herman Bros. empty oil transport driven by Jones. It struck the bakery van and plaintiff claims caused it to collide again with his car. All collisions occurred in rapid succession, probably within a minute or two. All were due at least in part to near-complete loss of visibility from blowing, swirling snow in this block-long area.

All drivers other than plaintiff testified to such loss of visibility. A second occupant of Peter Pan's van and a highway patrolman who investigated the accident also so testified. Plaintiff said he saw something in the road about 100 feet ahead of him which proved to be Terry's pickup.

Plaintiff alleged each defendant's driver (Peter Pan and Herman Bros.) was negligent in: 1) following too closely behind plaintiff's vehicle; 2) failing to keep a proper lookout; 3) failing to have its vehicle under control; and 4) driving at a speed which would not permit stopping within the assured clear distance ahead. Each defendant pleaded a legal excuse for any violation of law alleged by plaintiff; also that a blizzard at the time of the accident constituted an act of God which was sole proximate cause of the collisions.

I. Plaintiff first assigns error in permitting Terry on recross examination to testify that his version of what happened was that plaintiff struck the pickup from his own momentum.

On plaintiff's redirect examination Terry was asked for and expressed his opinion that plaintiff's vehicle was the first to come in contact with his pickup but he did not see what force impelled it into him. This is the recross examination:

'Q. As I understand it, the first impact with plaintiff was from his own momentum? A. Yes.

'Mr. Turner: Objected to as calling for an opinion and conclusion without proper foundation.

'The Court: I thought you just asked him the same question.' The question was repeated and the witness answered, 'That was my version.'

The above record presents no error. The question was not objected to until after it was answered and no reason was given for the delay, nor was a motion made to strike or exclude the answer. Jackson v. Chicago, M., St. P. & P. R. Co., 238 Iowa 1253, 1262, 1263, 30 N.W.2d 97, 102, 103, and citations; Article by Dean Mason Ladd, 22 Iowa Law Review 609, 622, 623. Further, we are not prepared to hold the objection, if timely, should have been sustained on the ground asserted. 'Ordinarily, conclusions may be called for and properly given on cross-examination.' Pugh v. Queal Lumber Co., 193 Iowa, 924, 930, 188 N.W. 1, 3. See also State v. Heinz, 223 Iowa 1241, 1252, 275 N.W. 10, 114 A.L.R. 959, 969, and Anno. 974, 975.

We may also point out that plaintiff could have suffered little, if any, prejudice from the quoted testimony in view of the entire record. Immediately following it was this redirect examination by plaintiff:

'Q. Do you know he wasn't impelled into your vehicle by the Peter Pan vehicle? A. I have stated all along this was a version of the accident I have given.

'Q. So you don't know? A. How would I know?'

Whether plaintiff's own momentum caused his car to collide with Terry's pickup primarily bore on the issue of his freedom from contributory negligence. In answer to a special interrogatory the jury found plaintiff free from contributory negligence. This finding seems to obviate the claimed error here considered. Spry v. Lamont, Iowa, 132 N.W.2d 446, 449, and citations.

Following the quoted redirect examination by plaintiff, counsel for defendant Herman Bors. brought out on further recross examination that the witness Terry could not recall hearing an impact before the one on the rear of his pickup. Asked whether he thought he would have been able to hear another collision, he answered over plaintiff's objection the question called for an opinion and conclusion without proper foundation, 'No, I wouldn't--as far as weather conditions were concerned I think you could hear a crash probably if there had been one but I don't recall that.' This followed: 'Q. Yo don't recall hearing another crash? A. No.'

We find no error in overruling the objection last referred to. We approve this from 20 Am.Jur., Evidence, section 803: 'The question frequently arises upon a trial whether certain objects could have been seen, sounds heard, or odors perceived under the circumstances * * * which existed at a certain time. A question of this character calls for an opinion or estimate, since the witness cannot answer it with absolute precision; but it is a matter of common observation and inference rather than of scientific judgment and, therefore, does not require expert evidence. Generally, therefore, an opinion of this character may be given by any person who has had full opportunity for observation, as, for example * * *, whether a witness could have heard a locomotive bell and whistle if they had sounded, whether an outcry from a victim could have been heard from a given point, * * *.' See also Marr v. Olson, 241 Iowa 203, 209, 40 N.W.2d 475, 479. Some of the considerations previously mentioned also apply to this claimed error.

Immediately following the recross examination last quoted plaintiff proceeded by leading questions on redirect examination to show that the witness Terry might not have heard another crash. The court properly sustained an objection as leading made by a defendant after one question was answered. We observe that since no motion to strike the answer was made it remained in the record. Correll v. Goodfellow, 255 Iowa 1237, 1247, 125 N.W.2d 745, 751, and citations. The court also sustained a defendant's objection as leading to the question, 'And the wind was blowing outside?' This ruling was also proper. Further, it was clearly shown by other testimony, including the direct examination of this same witness, and, in effect, conceded by all that the wind was blowing. No prejudice resulted from the ruling.

II. On plaintiff's cross-examination of Herman Bros. driver Jones, he testified that after he saw the Peter Pan vehicle he was able to turn his steering wheel three complete turns to the right and thus move his transport onto the right shoulder. Also, 'I have no idea how long it took to turn the steering wheel three complete turns to the right.' To the next question, 'Would you say more than a second?' Peter Pan's objection as petition was sustained. Plaintiff assigns error upon this alleged undue restriction of his right of cross-examination.

It is elementary that the trial court has considerable discretion in determining the scope and extent of cross-examination. Russell v. Chicago, R. I. & P. R. Co., 251 Iowa 839, 850, 102 N.W.2d 881, 888, and citations; Des Moines Blue Ribbon Distributors v. Drewrys Ltd., U.S.A., 256 Iowa 899, 129 N.W.2d 731, 740. We find no abuse of discretion here nor does it appear the witness would have given an answer more favorable to plaintiff than the one above quoted. Precedents last cited; Colburn v. Krabill, 232 Iowa 290, 293, 294, 3 N.W.2d 154, 156.

III. Plaintiff assigns error in submitting to the jury the defense that a blizzard at the...