Rasmussen v. Thilges, 53604

• Decision Date: 10 February 1970
• Docket Number: No. 53604,53604
• Citation: 174 N.W.2d 384
• Parties: Carma RASMUSSEN, Conservator of the Property of Glen Rasmussen, Appellant, v. LeRoy M. THILGES and Felix Thilges, Appellees. Carma RASMUSSEN, Appellant, v. LeRoy M. THILGES and Felix Thilges, Appellees.
• Court: Iowa Supreme Court

Page 384

174 N.W.2d 384

Carma RASMUSSEN, Conservator of the Property of Glen Rasmussen, Appellant, v. LeRoy M. THILGES and Felix Thilges, Appellees.

Carma RASMUSSEN, Appellant, v. LeRoy M. THILGES and Felix Thilges, Appellees.

No. 53604.

Supreme Court of Iowa.

Feb. 10, 1970.

Rehearing Denied April 6, 1970.

Arthur W. Smith, and Hanson & Bormann, Emmetsburg, for appellants.

James, Greer, Nelson & Bertell, Spencer, and Prichard & Doran, Emmetsburg, for appellees.

STUART, Justice.

This lawsuit is a consequence of a headon collision between two vehicles driven by farm neighbors. The jury denied recovery on both the claim and counterclaim. Plaintiff has appealed assigning 19 errors, most of which are interrelated questions of the admissibility of certain evidence affecting the sufficiency of the evidence.

There is little serious conflict over most of the facts. At about 4:30 p.m. on November 20, 1965, a sunny, dry day, LeRoy Thilges, hereinafter referred to as defendant, was driving his father's pickup in an easterly direction on a gravel road in Palo Alto County at a speed of about 35 miles per hour. At the same time Glen Rasmussen was driving his Plymouth station wagon in a westerly direction along the same road at about the same speed. They collided about 20 feet east of the crest of a hill over which the sight distance was less than 700 feet. The hill was not steep and defendant's engineer who established the crest with instruments testified it would have been difficult to locate it within 100 feet visually. There were no skid marks.

The vehicles remained locked together. The damage was to the Right 2/3rds of the front end of each vehicle. Neither left headlight was broken. In the usual headon collision the left front ends are involved. The only movement of the vehicles after the collision was a slight clockwise rotation around the point of impact. The pickup with a higher center of gravity was likely to rotate more.

I. As in most head-on cases, fault is determined by deciding which vehicle was on the wrong side of the road at the time of the collision. Involved in that determination here is the location of the center line. The roadway was 24 feet wide. Defendant claims a layer of loose gravel over three feet wide on the south side limited the traveled portion to 21 feet, moving the center line 1 1/2 feet to the north or plaintiff's side of the road. Based on this assumption defendant's accident reconstruction expert placed the point of impact in the center of the traveled portion of the road, which in turn established that both vehicles were over the center line.

Plaintiff objected to and assigned as error the admissibility of the testimony and exhibits which were necessary to establish defendant's contention that the roadway was only 21 feet wide at the time of the accident.

Exhibit 4 consisted of two pictures taken shortly before trial and more than two years after the accident. They disclose a level strip of loose bladed gravel along the south side of the road about 3 1/2 feet wide and a few inches deep. They clearly define the traveled portion of the road at that time. There was evidence the contours of road had not been changed between the date of the accident and the day the pictures were taken.

Plaintiff had introduced pictures taken the day after the accident which showed a similar area of loose gravel along the south side of the road. Mr. Schany, in front of whose farm the accident occurred, examined exhibit 4 and testified the gravel in the pictures was 'close' to the way it was on the date of the accident. On cross-examination he testified the width and depth could vary according to the patrol operator and he didn't know if it was in exactly the same width or depth. The concluding question and answer were:

'Q. And when you say this is substantially the same, what you mean is that it is- --the gravel is on the south side of the road? a. YES, in the same general area.'

This evidence, together with plaintiff's pictures taken the day after the accident, was sufficient foundation for the admission of the pictures and the use of a 21 foot wide traveled portion under defendant's theory of the case.

Professor Van Vleet, defendant's accident reconstruction expert, whose impressive qualifications were not questioned, viewed the site of the accident, took measurements and prepared exhibit 13 which is a plat drawn to scale showing a 24 foot roadway with a three foot strip of loose gravel along the south side leaving a traveled portion 21 feet wide. It included two cardboard scale replicas of the vehicles involved, showing the damaged area, weight and length. He was asked to make several assumptions of fact supported by the evidence and expressed the opinion that the point of impact was on the center line of the 21 foot traveled portion of the road.

The witness assumed defendant's left rear wheel was two feet from the north edge of the road. He originally assumed plaintiff's left rear wheel was nine feet from the south side of the road. It is not clear whether the assumed location of plaintiff's left rear wheel in the final hypothetical question was nine, six or seven feet from the south side. There is evidence in the record to support any of the assumptions. Defendant's father and codefendant testified he stepped off the distance of six feet. Mr. Miller testified he passed between the edge of the road and plaintiff's car in a six and one-half foot wide automobile and had at least six inches clearance. No one placed the wheel farther than nine feet from the edge of the road.

In Dougherty v. Boyken (1968), Iowa, 155 N.W.2d 488, 493, we approved of the use of qualified persons as experts in the field of accident reconstruction. We required however that the facts on which the opinion is based be stated together with their source. Page 495. We held the admission of the expert's testimony in that case error because there was insufficient recitation of the facts upon which he relied and the opinion was based in part on hearsay.

The admission or exclusion of expert testimony rests largely in the trial court's discretion. The discretion is not unlimited, but must be based on sound judicial reasons. The trial court will be reversed only on a clear showing of abuse of such discretion. Dougherty v. Boyken, supra, and citations.

The foundation for Professor Van Vleet's testimony was far more complete here. He testified he viewed the scene, examined all exhibits relating to the accident and was asked to assume certain facts supported by the evidence. The foundation upon which he based his opinion included the speed and direction of travel of the vehicles prior to the accident, the damaged areas on the vehicles, the width of the traveled portion of the highway, the position of the cars in relation to each other and the highway after the impact. He explained the physical law of 'conservation of linear momentum' which entered into his opinion.

An opinion as to the point of impact under these particular facts did not require as detailed a foundation as other more speculative questions where there is considerable movement of the vehicles after the collision.

We hold the foundation facts established and recited as a basis for the expert's opinion here meet the tests laid down in Dougherty v. Boyken, supra.

There was evidence the front left wheel of defendant's vehicle was three feet from the north side of the road. Van Vleet did not assume this was a fact and stated it was not consistent with the location of the oil and anti-freeze shown in the pictures taken the day after the accident. The oil and anti-freeze were located mostly on the north side of the 24 foot roadway. This is not inconsistent with defendant's theory of the case. The center of the 21 foot traveled portion would be 1 1/2 feet north of the center or crown of the roadway and liquids would tend to flow to the north. This three foot distance is not consistent with defendant's theory of the case and it is not necessary to include it in the hypothetical question. Poweshiek County National Bank v. Nationwide Mutual Insurance Co. (1968), Iowa, 156 N.W.2d 671, 676, and citations.

There was sufficient evidence from which the jury could find the accident occurred in the middle of the road and both cars were partially on the wrong side of the road and that neither driver saw the other vehicle soon enough to react to the impending collision.

II. This holding disposes of plaintiff's first four alleged errors contrary to his contentions. The evidence was sufficient to justify the court in submitting to the jury the allegation of plaintiff's negligence in failing to yield one-half of the traveled way, driving on the wrong side of the road when approaching the crest of a hill, failing to have his vehicle under control, and failing to keep a proper lookout. Spry v. Lamont (1965), 257 Iowa 321, 330, 132 N.W.2d 446, 451, and citations.

He also claims such negligence, if any, could not have been the proximate cause of the accident as the accident would have occurred even if Glen Rasmussen was driving his car farther north on the north half of the road. The question of proximate cause is ordinarily for the jury and only in exceptional cases is it decided as a matter of law. See Rule 344(f)(10), Iowa Rules of Civil Procedure. We have been cited no cases which resolve liability on the basis of which car was further over the center line. We do not believe this fact should be determinative of proximate cause even if the evidence were undisputed on this particular point.

III. The trial court refused to submit the allegation of negligence that defendant drove his vehicle on the wrong side of the road in approaching the crest of a grade where the unobstructed view is 700 feet or less. We need not get into the difficult propositions of negligence and proximate cause created by the fact that defendant was 20 feet past the crest of the hill when the collision...