Puhrmann v. Lund
| Decision Date | 16 October 1962 |
| Docket Number | No. 50674,50674 |
| Citation | 117 N.W.2d 495,254 Iowa 304 |
| Parties | Ray PUHRMANN, Guardian of Larry Ray Puhrmann, a Minor, and Ray Puhrmann, Appellants, v. Norman J. LUND, Appellee. |
| Court | Iowa Supreme Court |
S. G. Larson, Paullina, and David L. Savre of McDonald, Sayre & McDonald, Cherokee, for appellants.
James R. Hamilton of Edson & Hamilton, Storm Lake, and J. R. Miller of Miller, Miller & Miller, Cherokee, for appellee.
A verdict has been directed against a front seat passenger in an automobile collision case because his evidence was insufficient to carry the burden of proving his freedom from contributory negligence. Defendant filed his motion to direct at the close of plaintiff's case in two divisions. The first division was overruled. The second was sustained, it, in pertinent part, stated, '* * * the record * * * fails to show * * * plaintiff * * * was free from contributory negligence. * * * and that in this particular cause there is a complete absence of * * * what he did or did not do in the car.'
Defendant's contention in the trial court was not that plaintiff's acts showed he was contributorily negligent, but there was no showing made upon which a finding of freedom from contributory negligence could be based.
We find the record does contain sufficient evidence to make a jury question.
From the evidence the jury would have been entitled to find plaintiff was riding in the middle of the front seat of a convertible owned and driven by Gary Bjork. Charles Brockmann was on plaintiff's right in the front seat, and Gene Ehlers in the left rear, and Gene Behrens in the right rear. They were returning from a high school football game on October 30, 1959. It was a rainy, misty, and wet night. They were traveling west on Highways 3 and 5, about three miles east of Cherokee, when they passed a semi-trailer truck. The passing started at the top of a hill or incline. The semi-trailer was traveling 50-55 m. p. h., Gary Bjork 60-65 m. p. h. There was a yellow no-passing line at the place Bjork started to pass but he was unaware of it at the time. There was no east-bound traffic in sight at that time. When the Bjork car was alongside of the cab of the semi-trailer truck a pair of headlights came in view over the crest of the incline to the west. The Bjork car increased its speed, cut shortly to the right in front of the semi-trailer, and continued fully in the right-hand side of the road for 200 feet when the east-bound car came across the center line and struck the Bjork car. The pictures in evidence show the front of the Bjork car came in contact with the right front side and corner of the east-bound car of defendant Lund.
The plaintiff's injuries were such he did not remember the collision or anything for about two weeks before. The evidence on what he was doing in the car immediately before the collision is the following. He was sitting in the middle in the front seat. One of the rear seat passengers testified as follows on cross-examination:
* * *.'
Also on cross-examination, Charles Brockmann, riding on plaintiff's right was asked:
* * *
Plaintiff contends the above is sufficient evidence upon which to base a finding of freedom from contributory negligence. Defendant's position is that all this evidence amounts to is silence, that silence is always presumed, and in the absence of other evidence touching upon the conduct of plaintiff, sufficient evidence is not presented to take the case out of the scope of the rule laid down in Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47. Defendant has misconstrued Paulsen v. Haker. In the Paulsen case there was no evidence touching on what plaintiff's decedent was or was not doing or her position in the car at or near the point of the accident. The decedent and other girl in the car were killed. The two boys were so injured they remembered nothing of the accident. The driver had no recollection of the events of the day. The other boy recalled what took place until they were within a mile of the place of the accident. Up to that point the boys were in the front seat, the girls in the back seat. See also Plumb v. Minneapolis & St. Louis Railway Company, 249 Iowa 1187, 91 N.W.2d 380.
The difference in the Paulson case and this one is, in Paulson there was a total lack of evidence touching on plaintiff's actions at the...
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Marean v. Petersen
...1187, 91 N.W.2d 380. We find these cases either factually incomparable or legally inapplicable. As demonstrated by Puhrmann v. Lund, 254 Iowa 304, 307, 117 N.W.2d 495, the difference in the cases cited by defendant and the one now before us is that in the cases relied on by defendant there ......
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Ehlinger v. State
...and listening required of the driver.' --Glandon v. Fiala, supra, 261 Iowa at 755, 156 N.W.2d at 331. See Puhrmann v. Lund, 254 Iowa 304, 308, 117 N.W.2d 495, 497 (1962); Mathews v. Beyer, 254 Iowa 52, 58--59, 116 N.W.2d 477, 481 Trial court rightly held the State did not carry its burden o......
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McKirchy v. Ness
...as a passenger was fully shown in the evidence. We point out and discuss the effect of such difference in proof in Puhrmann v. Lund, 254 Iowa 304, 117 N.W.2d 495. Whether she exercised reasonable care as a passenger under the circumstances and whether any failure to so act contributed to th......
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Glandon v. Fiala
...an oncoming car. We held the question of the passenger's freedom from contributory negligence was for the jury. In Puhrmann v. Lund, 254 Iowa 304, 308, 117 N.W.2d 495, 497 we held the trial court erred in directing a verdict against plaintiff, a front seat passenger, who gave no warning to ......