Reimer v. Musel

• Decision Date: 12 December 1933
• Docket Number: No. 42153.,42153.
• Citation: 251 N.W. 863,217 Iowa 377
• Parties: REIMER v. MUSEL.
• Court: Iowa Supreme Court

217 Iowa 377

251 N.W. 863

REIMER

v.MUSEL.

No. 42153.

Supreme Court of Iowa.

Dec. 12, 1933.

Appeal from District Court, Tama County; Clarence Nichols, Judge.

Plaintiff commenced an action at law for damages because of the death of Clarence Reimer, alleged to have resulted from the negligence of the defendant in the operation of his automobile upon a public highway. The case was submitted to the jury. The jury returned a verdict for the plaintiff. Defendant appeals. Opinion states the facts.

Reversed.M. W. Hyland, of Tama, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellant.

Jensen & Wieben, of Dysart, for appellee.

MITCHELL, Justice.

The accident happened about midnight on July 31, 1932, on the Lincoln Highway, which is known as highway No. 30. Just east of the scene of the accident the Lincoln Highway runs east and west. There is a pavement connecting with the Lincoln Highway at this point which runs directly west, in line with the east and west portion of the Lincoln Highway, to the town of Chelsea, which is about three-fourths of a mile west of the scene of the accident. The Lincoln Highway at this point curves gradually to the north, forming a Y with the paved road which continues straight on into Chelsea. After curving to the north, the Lincoln Highway runs in approximately a northwesterly direction. It is a paved highway and 18 feet wide. The curve to the north which the highway makes at the Y is a five and a half degree curve. On the north side of the pavement, just after the Lincoln Highway starts to curve to the north, was a concrete flume or waterway, extending from the north edge of the pavement out across the shoulder of the road. Near this flume and at the extreme north edge of the shoulder was a guard post.

On the evening of the accident, about twenty minutes of twelve, Clarence Reimer, the appellee's decedent, had left Belle Plaine, a town to the east, in his 1930 Chevrolet coach. There was no one in the car with him. Prior to the collision, the appellant was driving his Model A Ford Tudor in a southeasterly direction around this curve. He was also alone. Clarence Reimer was driving in a general west or northwesterly direction on the Lincoln Highway.

The appellant was the only eyewitness to the accident. He testified that he was on the right-hand side of the southwest side of the black line at the time of the collision and was traveling about 35 miles an hour. There was no other evidence as to how the accident happened, except as shown by the physical facts. Clarence Reimer was killed in the accident. The appellee was appointed administrator of his estate and commenced this action to recover damages due to the negligence of the appellant.

It is the claim of the appellee that the physical facts in this case show that the appellant, immediately preceding and at the time of the collision between the two cars, was driving on the left-hand side of the center of the traveled portion of the highway, and, upon meeting the car driven by Reimer, the appellant failed to give one-half of the traveled way thereof by turning to the right This was the sole and only ground of negligence which the court submitted to the jury. It is the appellee's claim that the physical facts in this case squarely contradict the testimony of the appellant. The physical facts relied upon by the appellee are: First, the location of the two cars after the collision; second, broken glass scattered over the pavement, mainly on the north side and near the north shoulder; third, the condition of the cars, showing how they came together, after the accident; fourth, a certain diagonal black mark was found on the north curb, appearing to be made as by burning or sliding of the tire, with the brake set. This diagonal mark extended into the shoulder, leading up to the flume, beyond which lay the Reimer car.

At the end of the testimony, both sides having rested, the appellant made a motion for directed verdict, setting up among other grounds for sustaining the motion, that the appellee had failed to prove by a preponderance of the evidence any negligence on the part of the appellant, and that any negligence on the part of the appellant, if there was any, was the proximate cause of the alleged accident and the appellee's decedent's resultant death. Other grounds were alleged in the motion for directed verdict, but it will not be necessary for us to consider same. The court overruled the motion for directed verdict, and submitted the case to the jury. A verdict was returned by the jury in favor of the appellee, and, from the ruling on the motion to direct the verdict and from the ruling on the motion for a new trial, the appellant has appealed.

[1] The appellee's right to recover in this case is based entirely upon circumstantial evidence. Negligence may be based on circumstantial evidence, if the same reasonably supports the conclusion to be drawn therefrom. This court in a recent decision in the case of Stickling v. Chicago, R. I. & P. Railroad Co., 212 Iowa, 149, 153, 232 N. W. 677, 679, said: “The rule, well settled in this state, is that ‘a theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature, and are so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them.”

Again, in the case of In re Hill's Estate, 202 Iowa, 1038, at page 1039, 208 N. W. 334, 335, 210 N. W. 241, this court said: “Plaintiff relies wholly on the circumstances and physical facts as revealed after the accident. Plaintiff's case is based on presumption and inferences, and the propositions present several pathways leading to fields of speculation and conjecture. As in all cases of this character there are two primary questions: (1) Has the plaintiff sustained the burden of proof as to the negligence charged against the defendant? (2) Has the plaintiff sustained the burden of proof as to freedom from contributory negligence? The onus in these two particulars rested on the plaintiff throughout the entire case. If plaintiff failed in either one of these particulars, the trial court properly sustained the defendant's motion for a directed verdict.””

And at page 1043 of 202 Iowa, 208 N. W. 334, 336, 210 N. W. 241: “Negligence cannot be predicated on presumption or inference, and the proffered evidence in this case would raise collateral and remote issues and, as said in Adams v. Chicago, M. & St. P. R. Co., 93 Iowa, 565, 61 N. W. 1059, ‘would lead to all manner of complications.’ See, also, Gray v. Chicago, R. I. & P. R. Co., 143 Iowa, 268, 121 N. W. 1097.””

In the case of Schmidt v. Hayden, 205 Iowa, 1369, at pages 1371, 1372, 219 N. W. 399, 400, this court said:

“Where it is sought to establish by circumstantial evidence that the alleged negligence is the proximate cause of the injury, such evidence must exclude every other reasonable hypothesis. Asbach v. C., B. & Q. Ry. Co., 74 Iowa, 248, 37 N. W. 182;Neal v. C., R. I. & P. Ry. Co., 129 Iowa, 5, 105 N. W. 197, 2 L. R. A. (N. S.) 905;Tibbitts v. Mason City & Ft. Dodge Ry. Co., 138 Iowa, 178, 115 N. W. 1021;Kearney v. Town of De Witt, 199 Iowa, 530, 202 N. W. 253. We have also said that, where the evidence is in equipoise, the plaintiff must fail. George v. Iowa & S. W. Ry. Co., 183 Iowa, 994, 168 N. W. 322.”

Another rule of this court is that the cause of the accident must be clearly shown and cannot be left to speculation or conjecture. Pearson v. Wilcox [109 Iowa, 123, 80 N. W. 228], supra; Martinek v. Swift & Co. [122 Iowa, 611, 98 N. W. 477], supra; Anderson v. Wapello Coal Co. [151 Iowa, 479, 131 N. W. 684], supra.”

Thus there appears to be no question about the general rule of law. What concerns us is its application, and to apply it to the case at bar we must carefully consider the record before us.

[2] The appellee's first claim is the location of the two cars after the collision. There seems to be little dispute in the record in regard to the location of the cars after the accident. The Musel car was in the center of the paved portion of the highway, headed north, about 4 feet east of the flume. The Reimer's car was north of the north edge of the pavement, headed south, about 6 or 8 feet west of the concrete flume. The undisputed evidence shows that the concrete flume was approximately 10 feet wide. So at the time these two cars came to rest after the collision, the Musel car, being about 4 feet east of the flume, and the Reimer's car 6 to 8 feet west of the flume, they were at that time better than 20 feet apart. And no negligence on the part of the appellant is shown by the location of the cars. Where they were when they came to rest proves nothing whatever with reference to their location at the time of the collision.

The next physical fact which the appellee relies upon is the broken glass on the pavement after the accident. There is testimony in the record that there was broken glass on the pavement and a great deal of it on the north side and north shoulder of the pavement. Of course, when these two cars collided, the glass was broken in both cars and scattered over the pavement. The glass in the Reimer's car was broken, and it may have been that, when the Reimer's car crossed the flume, as it no doubt did, glass dropped out of the Reimer's car onto the north side of the pavement and the north shoulder. There is nothing in the record, from the...