Passwaters v. General Motors Corporation

• Decision Date: 10 January 1972
• Docket Number: No. 20072.,20072.
• Citation: 454 F.2d 1270
• Parties: Susan PASSWATERS, by Donald Passwaters, Her Father and Next Friend, and Donald Passwaters, Appellants, v. GENERAL MOTORS CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

454 F.2d 1270 (1972)

Susan PASSWATERS, by Donald Passwaters, Her Father and Next Friend, and Donald Passwaters, Appellants, v. GENERAL MOTORS CORPORATION, Appellee.

No. 20072.

United States Court of Appeals, Eighth Circuit.

January 10, 1972.

M. Gene Blackburn, Maxwell, Iowa, and Thomas L. McCullough, Sac City, Iowa, for appellants.

A. Roger Witke, Edward J. Kelly, Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, Iowa, William D. Guthrie, Webster City, Iowa, for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

LAY, Circuit Judge.

This is an appeal from a directed verdict granted the defendant General Motors Corporation against Donald Passwaters suing on behalf of himself and his injured daughter, Susan (hereinafter designated as plaintiff). The amended complaint pleaded both negligent design and strict liability. The accident occurred in the State of Iowa and both parties agree that Iowa law controls. Plaintiff asserts that she was a passenger on a Honda motorcycle being operated on a public highway which collided with a 1964 Buick Skylark automobile. She claims her left leg came into contact with a wheel cover on the rear wheel of the car. She asserts that the wheel cover consisted of unshielded metal flanges or flippers which protruded outward from the base of the cover. These spun when the wheel rotated rapidly. When her leg contacted these metal protrusions as a result of the accident, the suit alleges she received a severe mangling type laceration to her lower calf.

The district court directed a verdict at the close of all of the evidence. The court ruled: (1) that the State of Iowa has not adopted the rule of strict liability, (2) that the defendant was not accountable to the injured party for negligent design since there was no foreseeable duty of care extending to her, and (3) that the collision between the motorcycle and the auto constituted an intervening cause thereby insulating the conduct of the manufacturer. We reverse and remand the cause for a new trial.

The collision took place on May 23, 1967, on the open highway near Webster City, Iowa. The driver of the Buick was proceeding in the same direction behind the motorcycle on which plaintiff was a passenger. The evidence shows as the automobile passed the motorcycle the car's right rear side came into contact with the handlebar of the cycle. It is plaintiff's claim that this collision caused her left leg to be thrown into the opening of the rear wheel well containing the protruding spinning blades of the hubcap. She received a severe lacerating injury to the outside of the lower leg just above the ankle. Her doctor described the injury as a "Mangling type injury with multiple lacerations of the foot." The bone was so severely severed that only some soft tissue held her leg together. Her father came to the scene of the collision and discovered the Buick's right rear hubcap with human flesh and blood on it. The highway patrolman verified the blood on the hubcap.

The wheel cover was designed with the two ornamental blades protruding some three inches from the base of the cover itself. The flippers serve only the purpose of aesthetic design. These spinners or flippers were recessed two and one-eighth inches within the outer perimeter of the car's body shell. Within the five square feet of the car's rear wheel well there was no covering or protection from the blades. When the vehicle moved at a speed of 40 m. p. h. the blades revolved at 568 r. p. m. or nine and one-half revolutions per second. Plaintiff's expert witness, who held a Ph.D. in agricultural engineering and theoretical applied mechanics, testified that the protruding blades moving at high speeds in an unshielded area constituted an unsafe design to persons who might come within their vicinity. Defendant's design experts testified to the contrary observing that the area was recessed within the body shell of the vehicle and therefore not considered dangerous. Defendant contends that there was insufficient evidence to show that plaintiff's leg was actually cut by the hubcap in question.

Before passing directly on the issues raised here, we feel constrained to restate certain principles relating to motions for directed verdicts. Judge Sanborn observed in Barnett v. Terminal R. Ass'n of St. Louis, 200 F.2d 893 (8 Cir. 1953), cert. denied, 345 U.S. 956, 73 S.Ct. 938, 97 L.Ed. 1377:

"It is safe to say that in a case such as the one before us, it is unwise for a trial judge to direct a verdict at the close of the plaintiff\'s evidence. We think that, even though the trial court is of the opinion that the evidence will not support a verdict for the plaintiff, the court should ordinarily reserve its ruling on a motion for a peremptory instruction until after verdict. That course will usually hasten the ultimate termination of the litigation and best serve the interests of both parties. The jury\'s view of the sufficiency of the evidence may coincide with that of the court. If it does not, the court, despite the verdict, can enter judgment for the defendant. An appeal from such a judgment, entered after verdict, will usually terminate the controversy one way or the other, and avoid a retrial with its resulting delay, trouble and expense and the possibility of a second appeal. Compare, Moore v. Chesapeake & Ohio Railway Co., 340 U.S. 573-574, 71 S.Ct. 428, 95 L.Ed. 547." 200 F.2d at 896.

We suggest adherence to this procedure is the better approach absent exceptional circumstances not present here.

Turning to the merits of this case, we shall meet the issue of proximate cause first.

The evidence as to whether the protruding flippers were the cause for the severe injury rests on circumstantial proof. The testimony of plaintiff's doctors is based solely on their assumption of the truth as to the mechanism to be proved, i. e., that the leg came in contact with the protruding blades. The doctors' testimony does establish that the alleged defect, the protruding flippers, could cause the severe injury sustained. Without additional proof we would agree with defendant that causality was not proven to a reasonable degree of certainty sufficient to allow the jury to pass on the question. On the other hand, defendant's proof that the footrest on the motorbike was a few inches higher than the location of the blades is not conclusive. The evidence showed that the first contact between the automobile and the motorbike was with the side of the car and the cycle's handlebar. There was expert opinion the jury could believe that on impact the rear of the motorcycle would have a tendency to swing into the automobile. As brought out on cross-examination plaintiff's foot could be dislodged on impact from the bike's footrest which the jury could find would put it in contact with the protruding blades. Circumstances of the initial impact, the movement of the vehicles thereafter, the evidence as to the detachment of the hubcap from the automobile, proof of blood and flesh on the hubcap, and the kind of laceration the young lady received are all important in determining the question of the sufficiency of the evidence. A commonplace proposition of Iowa law, as so noted in the Iowa Rules of Civil Procedure, is stated as follows:

"An issue may be proven by circumstantial evidence; but this evidence must be such as to make the theory of causation reasonably probable, not merely possible, and more probable than any other theory based on such evidence. Generally, however, it will be for the jury or other trier of the facts to say whether circumstantial evidence meets this test." Rules of Civil Procedure, 58 Iowa Code Ann., Rule 344(f)16 (1967).

Applying this rule to the present facts, we find that reasonable minds could differ as to whether plaintiff sufficiently substantiated the causal nexus of the alleged defect with the injury.

The trial court held that the collision between the motorcycle and the automobile was an intervening cause as a matter of law, thereby insulating General Motors' liability for the alleged defective design. We disagree. See Ford Motor Co. v. Zahn, 265 F.2d 729 (8 Cir. 1959). This ruling overlooks this court's position as to the issue of proximate cause where there exists a "second accident." In Larsen v. General Motors Corp., 391 F.2d 495 (8 Cir. 1968), this court observed:

"We, therefore, do not think the automobile industry is being singled out for any special adverse treatment by applying to it general negligence principles in . . . (2) holding that the intended use of an automotive product contemplates its travel on crowded and high speed roads and highways that inevitably subject it to the foreseeable hazards of collisions and impacts." Id. at 504.

The Iowa Supreme Court has viewed the issue of intervening cause and proximate cause as generally one of fact for the triers of fact. In Walton v. Eckhart, 354 F.2d 35 (8 Cir. 1965), we observed:

"In Iowa the jury determines both the existence of an intervening efficient cause and whether it has insulated the negligence of the defendant and replaced it as the proximate and actionable cause of the injury. See Johnson v. Baker, 254 Iowa 1077, 120 N.W.2d 502, 506 (1963) and cases there cited; Blessing v. Welding, 226 Iowa 1178, 286 N.W. 436 (1939); McClure v. Richard, 225 Iowa 949, 282 N.W. 312 (1938).

"This proposition was aptly expressed by Judge Graven in Chicago & North Western Ry. Co. v. Chicago, R. I. & P. R. R. Co., 179 F.Supp. 33, 55 (N.D. Ia.1959):

"`The whole trend of the recent decisions of the Iowa Supreme Court is to the effect that, save in exceptional cases, the question of causal connection between the negligence of a person and the injury of which it is claimed to be a proximate cause is one to be determined by the jury and not one to be dealt with as a question of law by the Court. That Court has in its recent decisions tended to emphasize that questions as to proximate cause, independent intervening

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