Perry v. Eblen, 49702

• Citation: 98 N.W.2d 832,250 Iowa 1338
• Decision Date: 20 October 1959
• Docket Number: No. 49702,49702
• Parties: Jay Marvin PERRY, Appellant, v. Mrs. Doris EBLEN and Charles Blazek, Sr., as Co-Administrators of the Estate of Charles Blazek, Jr., Appellees.
• Court: Iowa Supreme Court

Page 832

98 N.W.2d 832

250 Iowa 1338

Jay Marvin PERRY, Appellant, v. Mrs. Doris EBLEN and Charles Blazek, Sr., as Co-Administrators of the Estate of Charles Blazek, Jr., Appellees.

No. 49702.

Supreme Court of Iowa.

Oct. 20, 1959.

Killmar & Reynoldson, Osceola, and Arnold O. Kenyon, Creston, for appellant.

Thos. E. Mullin and Donald D. Mullin, Creston, and E. W. Mullin, Corning, for appellees.

THORNTON, Justice.

On August 6, 1956, about 4:00 P.M. a collision occurred at an intersection of two farm to market roads in Adams County between a 1954 Ford automobile owned and driven by plaintiff and a 1950 GMC pickup truck owned and driven by defendants' decedent. Plaintiff was driving east on a rock road intersected by a then dirt road under construction on which decedent was allegedly traveling south. Decedent and his wife riding with him both lost their lives in the accident. Decedent's small son, of kindergarten age at the trial, plaintiff, and his passenger Crill, were all severely injured in the accident. The pictures of the vehicles introduced in evidence are mute testimony of the force of the impact and the speed of one or both of the vehicles. The jury returned a verdict for defendants and plaintiff appeals.

Plaintiff complains that he should be granted a new trial under the broad powers of the court because he did not receive a fair trial in that the verdict failed to administer substantial justice, it was influenced by passion and prejudice under the circumstances shown in the record including misconduct of counsel, it was not sustained by sufficient evidence and was contrary to law, the jury did not understand the instructions, and the verdict was in disregard of the instructions. Plaintiff also complains of the giving and refusal to give certain instructions and improper impeachment and cross-examination.

I. The first proposition is best set forth in Burke v. Reiter, 241 Iowa 807, 42 N.W.2d 907, and Jourdan v. Reed, 1 Iowa, Clarke, 135. These cases require us to examine the evidence to determine whether the verdict for the defendant has substantial support. We find substantial support. Plaintiff contends there is no support in the evidence for the verdict and it is in conflict with the great weight of the evidence. Our evidentiary situation is as follows: Plaintiff and his passenger, Crill, were so severely injured they lost their memories as to the happenings immediately before the collision until about one week before the trial when they partially remembered. There are no other eyewitnesses, decedent and his wife are dead and their small son remembered nothing. We are therefore limited to the incomplete testimony of plaintiff and Crill and circumstantial evidence. There is no question of the sufficiency of the evidence to generate a jury question. An examination of the evidence shows there is substantial evidence upon which to base a finding of contributory negligence and that negligence of decedent, if any, was not the proximate cause of the collision. The physical facts show plaintiff was coming up a hill as he approached the intersection, the hill together with a cornfield cut off his vision to the north until he reached a point 126 feet west of the center of the intersection at which point he could see a car 112 feet north of the center of the intersection. Each intersecting road was 66 feet between the fences and the traveled portion 24 feet wide. Plaintiff testified he was going 45-50 m. p. h. at the intersection, but on cross-examination he admitted he had recently regained his memory and his testimony as to speed was a matter of deduction. He looked to the south and there was no traffic. He looked left (north) as he was 'just coming into it.' On cross-examination he said, 'I don't know for sure where I was from the center of the intersection when I saw this pickup truck. I suppose it was 50 or 75 feet, something like that.' Crill testified he did not look north and plaintiff said, 'They are going to hit us.' Both testified there was no vehicle in the intersection ahead of them. Plaintiff was familiar with the intersection. He traveled the road every week. The exhibits showing the car and the pickup show speed on at least one and probably both vehicles. The point of collision was not definitely established. Two of plaintiff's witnesses testified to glass and debris almost directly in the center of the intersection to the southeast corner. There was other testimony that there was no glass or debris in the intersection but in the southeast ditch where the vehicles came to rest. There were no skid marks in the intersection. The pickup was on its side in the southeast ditch 41 feet 10 inches from the center of the intersection, plaintiff's car 66 feet 7 inches. The damage to the vehicles showed the right front of the pickup from the door to the front and the left side of the car near the doorpost could be found to be the point of contact on the vehicles. On cross-examination a highway patrolman called by plaintiff testified, '* * * The damage was done to the right side of the pickup from the door up to the front and the bumper on the right-hand side wasn't shoved back as though it was a head-on collision. * * *' Under the circumstances above outlined plaintiff could be found by a jury not to have been traveling at a reasonable and proper rate as he traversed the intersection. The same is true as to having his car under control. If the testimony of plaintiff and Crill were disbelieved, which the jury had a perfect right to do, Soreide v. Vilas & Company, 247 Iowa 1139, 1148, 78 N.W.2d 41, 47, the circumstantial evidence could be taken by the jury as affirmative proof of speed and lack of control. Clearly there was substantial evidence from which the jury was entitled to find plaintiff failed to keep a proper lookout. Assuming the facts most favorable to plaintiff, which he is not entitled to in this examination, he came up a hill with a cornfield on his left at 45-50 m. p. h., 66 feet per second, looked to his left when he was 75 feet from the center of the intersection when he could see 50 feet before that and he had time to only cry out, 'They are going to hit us.' This is true even though he had the right to assume the driver on his left would grant him the right of way until he knew to the contrary. The jury could find here that he failed to look at a point where he would have had an opportunity to make a determination to the contrary. Also, the jury could find decedent's pickup was in the intersection making a left turn ahead of the plaintiff, the lack of skid marks and testimony of glass and debris in the center of the intersection together with the exhibits are as consistent with this theory as any other. The degree of proof in a case resting on circumstantial evidence is, the 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. It is not necessary the testimony be so clear as to exclude every other possible theory. Soreide v. Vilas & Company, supra, and citations therein. This means only the evidence must be such as to raise a jury question within the limits of the foregoing rule; it need not be conclusive. Hackman v. Beckwith, 245 Iowa 791, 64 N.W.2d 275. There is substantial evidence in support of the verdict, the evidence does not bring the plaintiff within the above cited Burke and Jourdan cases. In Jourdan v. Reed, supra, this court said, 'If we could see in this evidence anything that could, by any fair construction, sustain this verdict, we should not disturb the judgment.'

Plaintiff complains of the presence of decedent's orphaned son in the courtroom and the halls during one day of the trial. This is without merit. The trial was public and the boy has as much right to attend one day as any relative, friend or member of the general public.

Complaint is made of misconduct on the part of counsel for defendants for attempting to place in evidence the watches worn by decedent and his deceased wife at the time of the accident. They were evidently trying to establish an earlier time of accident than claimed by plaintiff. The trial court promptly excluded the watches when it became evident that no proper foundation could be laid. The jury was excluded before the offer was made. No prejudice or misconduct is present here.

Further complaint is made of misconduct of counsel in argument. At the time both the court and reporter were out of the courtroom working on instructions. Both were immediately available. Plaintiff made such record as he wished but the record does not show that he then objected on the grounds of misconduct or then or at the close of the argument asked for a mistrial on such grounds. We have held you cannot gamble on the verdict and raise such matter for the first time on the motion for a new trial. Mongar v. Barnard, 248 Iowa 899, 907, 82 N.W.2d 765, 771, and Hackaday v. Brackelsburg, 248 Iowa 1346, 1352, 85 N.W.2d 514, 518. However, this is in no way to be taken as an approval of the statements made by defense counsel.

Plaintiff next complains of the court's overruling his objection to defendants' Exhibit No. 23. Defendants offered in evidence Exhibits Nos. 20 and 23. Objection was made because the exhibits neither added to nor subtracted from the exhibits already in evidence and they showed the dead body of decedent trapped under the pickup and that it was an attempt to inflame and prejudice the jury. Exhibit No. 20 was a close-up view and the court excluded it. Exhibit No. 23 is a long-range view showing not only the pickup and a portion of the deceased but also the intersection and the road to the north. Upon ruling the court stated Exhibit No. 23 was the best picture of the intersection that had been offered. Our examination of the exhibits certified to us shows this statement to be justified. Plaintiff contends this exhibit is not within...