Odegard v. Gregerson
| Decision Date | 11 January 1944 |
| Docket Number | 46354. |
| Citation | 12 N.W.2d 559,234 Iowa 325 |
| Parties | ODEGARD v. GREGERSON. |
| Court | Iowa Supreme Court |
Breese & Cornwell, of Mason City, for appellant.
L A. Moe and Senneff & Duncan, all of Mason City, for appellee.
Plaintiff, as administratrix of the estate of Walter R. Odegard, deceased brought suit against the defendant for damages and in her petition alleged that defendant negligently operated his automobile, which negligence caused a collision with the car driven by the decedent. It is asserted that the damages claimed by plaintiff include the following: Loss to his estate by reason of the death of the decedent, the expenses attendant to hospital and medical services rendered, repairs to his automobile, and also damages by reason of burial expense incurred prior to decedent's anticipated expectancy of life. The defendant plead a general denial and during the trial, by various motions, asserted that the plaintiff's intestate was guilty of contributory negligence. The trial court submitted the case to the jury which returned a verdict in favor of the plaintiff. The defendant's motion for a new trial, and exceptions to instructions, were overruled. Judgment was thereafter entered against him. He has appealed.
The accident which resulted in the litigation now before us for review, occurred at the intersection of Federal Avenue and Sixth Street, Southeast in Mason City, Iowa, about 4:45 o'clock A. M. on Sunday, August 10, 1941. Federal Avenue is a part of a federal north and south highway which is designated as U. S. Highway No. 65. Sixth Street intersects this highway and to the east of it the street is referred to as Sixth Street, Southeast and the intersecting street, to the west, is known as Sixth Street, Southwest. At the intersection of these streets there is an official "Stop" sign, requiring traffic to stop before entering Federal Avenue. Federal Avenue is 46 feet wide at the place where the collision occurred and Sixth Street at this intersection is 41 feet from curb to curb. This intersection is in the business district of Mason City and is in a twenty mile per hour speed zone. Prior to the collision that occurred at the intersection of the two streets heretofore referred to, the appellant was driving north and approaching Sixth Street. The decedent, just prior to the accident, had driven to the intersection of the two streets from the east, stopped momentarily and then proceeded across the highway to the west. The collision which resulted in the death of the appellee's intestate occurred just after the decedent's automobile passed the center of Federal Avenue. The testimony shows that the Odegard car was struck on its left rear side.
In order that the facts concerning the collision may be more definitely set forth we shall quote portions of the testimony of certain of the witnesses.
Dale Shafer, an attendant at an oil station located on the southeast corner of the intersection, testified:
Oscar Wiser, who was in the car with the decedent at the time of the accident, testified:
This witness further testified in substance that Mr. Odegard stopped before entering the intersection of Sixth Street Southeast and Federal Avenue; that he recalled proceeding into the intersection; that the front of the Odegard car was past the center of the intersection at the time it was struck and that it had passed the center line of Federal Avenue when it was struck by the other car.
Wiser further testified:
Further testimony given by Wiser was to the effect that the speed of the Odegard car remained about the same from the time it entered the intersection until the collision and that he did not hear Odegard make any statement or exclamation just before the collision.
Everett Richardson testified that on one occasion Gregerson told him that the accident was his fault and he thought it would be taken care of. Mrs. Cora Odegard, the wife of decedent, testified that after the funeral Mr. Gregerson came to her home and visited with her concerning the accident, and relative to this conversation she testified, as follows: "He said he was sorry he did not see the car but not to worry, that everything would be taken care of."
Mrs. Everett Richardson, a sister of Mrs. Odegard, also testified that after Mr. Odegard's funeral, Mr. Gregerson was at the home of Mrs. Odegard. Mrs. Richardson's testimony, in part, was:
W. M. Gregerson, the defendant and appellant, was the only witness who testified in his behalf. He denied the statements attributed to him by the witnesses for the appellee. His denial of the statements made by the appellee's witnesses was the extent of his testimony. He did not testify as to how the accident had occurred.
The appellant at the close of the appellee's testimony, and at the close of all the testimony, moved for a directed verdict. It was the appellant's main contention at that stage of the litigation, as it is before this court, that the appellee had not carried the burden of proof of showing freedom from contributory negligence and that the evidence failed to show that the claimed negligence of the appellant, if any, was the proximate cause of the accident. This contention of the appellant necessitates our consideration of the evidence presented and the application of the law to the facts.
I. We have consistently held that in giving consideration to the question whether or not there should be a directed verdict in favor of a defendant, the testimony of the plaintiff should be considered in its most favorable light. Lathrop v. Knight, 230 Iowa 272, 275, 297 N.W. 291; Nagel v. Bretthauer, 230 Iowa 707, 711, 298 N.W. 852; Crowell v. Demo, 231 Iowa 228, 229, 1 N.W.2d 93; Bartholomew v. Butts, Iowa, 5 N.W.2d 7, 9. We have also held that if reasonable minds would differ as to the facts presented the question of the respective liabilities of the parties should be left to the jury. Calvert v. Mason City Loan & Investment Co., 219 Iowa 963, 967, 259 N.W. 452; Dawson v. Bankers' Life Co., 216 Iowa 586, 600, 247 N.W. 279.
II. It is asserted by the appellee that the appellant was guilty of negligence as a matter of law in driving his car on Federal Avenue in a business district in excess of twenty miles per hour, and in not driving his car on the right-hand side of the center of the street. It is contended by the appellee that the appellant could have avoided striking decedent's automobile if he had driven his automobile in the manner and place that appellee claims was required of the appellant. It is the further claim of the appellee that inasmuch as the deceased was past the center of the street and in a place of safety when his automobile was struck, even though he might have been negligent in driving into the intersection, yet his act in doing so, in the light of the appellant's manner and place of driving, was not a contributing factor which would prevent recovery. The appellant, on the other hand, claims that the evidence fails to show that his negligence, if any, was the proximate cause of the accident. He contends that the claimed negligence of the decedent contributed to the collision and on account of that fact the appellant should not be held liable for the resulting damages.
We have held in innumerable cases that the question of contributory negligence is ordinarily a question for the jury and if there is any evidence tending to establish a plaintiff's freedom from contributory negligence that question is for the jury. Pierce v. Dencker, 229 Iowa 479, 484, 294 N.W. 781; Huffman v. King, 222 Iowa 150, 268 N.W. 144; Short v. Powell 228 Iowa 333,...
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