Peterson v. Davis

• Decision Date: 09 April 1963
• Docket Number: No. 50961,50961
• Parties: Carl Lawrence PETERSON, Administrator of the Estate of Dora E. Peterson, deceased, Appellant, v. Donald R. DAVIS, Appellee.
• Court: Iowa Supreme Court

Page 111

121 N.W.2d 111

254 Iowa 1359

Carl Lawrence PETERSON, Administrator of the Estate of Dora E. Peterson, deceased, Appellant, v. Donald R. DAVIS, Appellee.

No. 50961.

Supreme Court of Iowa.

April 9, 1963.

Swanson, Swanson & Boeye, Red Oak, for appellant.

Leo F. Connolly, Council Bluffs, and Jonathan B. Richards, Red Oak, for appellee.

THOMPSON, Justice.

The sole substantial question involved in the case before us is a limited one. Plaintiff's suit seeks to recover damages for injuries claimed to have been sustained by his decedent in a collision on January 3, 1960, between a car owned and driven by her husband, now the administrator of her estate, and another automobile owned and driven by the defendant. Plaintiff's decedent was riding at the time as a passenger in her husband's car, sitting in the right hand front seat. At the close of plaintiff's evidence and after he had rested his case, the trial court granted defendant's motion for a directed verdict. From judgment on the verdict we have this appeal.

I. Since the case comes to us upon appeal from a peremptory verdict for the defendant and judgment thereon, we must take the evidence adduced for the plaintiff in the aspect most favorable to him which it will reasonably bear. The record shows testimony by the plaintiff, who was the driver of the car in which decedent was riding, that he, his wife and 13 year old son were on their way to church on the morning of January 3, 1960. He turned from Highway No. 34 on Third Street in the City of Red Oak and proceeded south on that street. His wife was riding in the right front seat and his son in the rear seat. The sun was shining and his windshield was clear. As he approached the intersection of Third Street with Valley Street he looked to the left, then to the right. From the right he saw approaching an automobile--which proved to be the one owned and driven by the defendant--which he estimated was about 85 feet from the intersection. He was at the time about 20 feet from the intersection. He said: 'I looked down there, and he had at least twice as far to go as I did, so I proceeded to keep my own speed--the same speed, ten or twelve miles per hour and cross the intersection. * * * Well, it didn't look like to me it could possibly be an accident.' He then proceeded into and partly across the intersection at the same speed, but when he was somewhat over one-half way across his car was struck on the right hand side, about in the middle, by the defendant's automobile. He said he could have stopped 'if it had been necessary.'

The witness also testified that his wife did not have a driver's license and had never driven an automobile. It was about one-half mile from the intersection of Highway No. 34, where he turned into Third Street, and the place of the collision. He had driven about the same speed, 10 to 12 miles per hour, at all times as he went south on Third Street.

Lawrence Dale Peterson testified that he was sitting in the rear seat reading the Sunday newspaper as they approached the intersection, and did not see the Davis car until 'it was just about ready to hit.' Again he said defendant's car was perhaps 20 to 30 feet away when he first noticed it.

This, with a plat, of the intersection and immediate surroundings prepared by the county engineer of Montgomery County, is a summary of the plaintiff's evidence, as shown by the record. When he rested his case, the defendant moved for a peremptory verdict, the important part of the motion being that the plaintiff had failed to prove his decedent's freedom from contributory negligence. The plaintiff then asked leave to reopen to offer additional evidence on the point, but this request was refused and the motion to direct sustained.

II. 'It is a general rule, established by a long line of authority, * * * that the burden is on the plaintiff to show his freedom from [contributory] negligence.' Gregory v. Woodworth, 93 Iowa 246, 248, 61 N.W. 962, 963. Few rules are more firmly settled in Iowa. And proof of such freedom is of the 'very substance' of plaintiff's case. Central Vermont Ry. Co. v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 867, 59 L.Ed. 1433, Ann.Cas.1916B, 252; Fort Dodge Hotel Co. v. Bartelt, C.C.A., 8th Cir., 119 F.2d 253, 258.

It must be conceded that there is no slightest evidence of what the decedent here did in the exercise of due care for her own safety as the car in which she was riding approached the intersection. Plaintiff's counsel say in their brief and argument 'The evidence is silent on what Dora E. Peterson did herself.' However, it is now contended that the fact that she had never driven an automobile and had no driver's license, and that the driver saw the approaching car in ample time shows there was nothing she could have done, and so she could not have been charged with any negligence which contributed to her injury and damages. We cannot agree. She sat on the right hand of the driver, the side from which the danger came. In fact she might have been guilty of contributory negligence even if the driver was not guilty of negligence. In Plumb v. Minneapolis & St. Louis Ry. Co., 249 Iowa 1187, 91 N.W.2d 380, we said: 'The passenger occupied the right side of the seat, the direction from which the train approached, and a somewhat clearer view of it was available to him than to the driver. Although the driver was required to exercise greater vigilance than the passenger, the latter could not entirely entrust his safety to the former.' Loc. cit. 249 Iowa 1194, 91 N.W.2d 385.

The instant case...