Remer v. Takin Bros. Freight Lines, Inc.
| Decision Date | 09 January 1940 |
| Docket Number | 44876. |
| Citation | 289 N.W. 477,227 Iowa 903 |
| Parties | REMER v. TAKIN BROS. FREIGHT LINES, Inc., et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Linn County; H. C. Ring, Judge.
Action to recover damages for personal injuries arising out of an automobile accident. There was a verdict for the plaintiff and judgment was entered thereon. Defendants appeal.
Reversed.
Reed & Beers, of Waterloo, and Perrine & Albright, of Cedar Rapids for appellants.
G. P Linville and W. R. Watsabaugh, both of Cedar Rapids, for appellee.
The plaintiff's petition alleges that on December 26, 1937 he was standing on the parking adjacent to a street in Cedar Rapids when the defendants' truck struck a truck of one Voracek, then standing in said street, forcing the same onto the parking and against the plaintiff causing injuries. The allegations of negligence were, (1) excessive and dangerous speed of defendants' truck, (2) not having the truck under such control that it could be stopped within the assured clear distance ahead, (3) failure to drive around the Voracek truck when it was seen or should have been seen in the street, (4) failure to stop defendants' truck when it was seen or should have been seen that it was about to collide with the Voracek truck. Damages were claimed as follows: Hospital bill, $172.95; ambulance fee, $4; doctor bills, $90; damage to clothing, $25; loss of wages, $542; pain and suffering, past and future, $3,000; permanent disability, $12,000; total $15,833.95. Defendants' answer was a general denial. There was a trial to a jury which returned a verdict for plaintiff in the sum of $7,291.95. Judgment was entered thereon, from which defendants appeal, asserting 13 assignments of error.
Appellants' 12th assignment of error complains of the ruling on a motion for a directed verdict made at the close of the plaintiff's evidence and renewed at the close of all the evidence. The first assignment of error complains of the court's Instruction 9, which undertook to advise the jury in reference to the duties imposed upon defendants by the provisions of Section 5029 of the Code, particularly the duty to refrain from driving at a speed greater than will permit one to bring his vehicle to a stop within the assured clear distance ahead, assuming that all persons using the highway will observe the law. As the propositions presented by these two assignments of error are quite definitely related to each other, we will consider them together.
Plaintiff testified that, at about 1:35 p. m. on December 26, 1937, he, with his wife, two sons and two neighbor boys, was riding in his car in a southerly direction on Highway No. 11, entering Cedar Rapids, Iowa, at a point where said highway traverses 13th Street of that city. They had driven to Cedar Rapids from Center Point, where plaintiff is president of the North Linn Bank. The paving was fairly free from ice until they reached Cedar Rapids, where they found the street covered with ice. As they proceeded south on 13th Street, they approached a library station on the west side of the street, in front of which a car was parked. The plaintiff's son, Theodore, was driving the car. He attempted to avoid the parked car, but scraped its fenders. He slowed down, pulled over to the curb and stopped in front of a residence designated as 855 13th Street, two doors south of the library station. Plaintiff and his younger son went back to see what damage had been done. They found a little dent on the fender. They returned to plaintiff's car. While plaintiff was standing in the parking northwest of the car, he saw a pick-up truck, operated by one Voracek, proceeding south on the pavement. When it attempted to avoid the car parked in front of the library station, it started to skid and turned almost completely around in the street. A large truck and trailer, owned by the defendant, Takin Bros. Freight Lines, Inc., and operated by the defendant, Leo Williams, was following the Voracek truck. After the Voracek truck had skidded around, the defendants' truck collided with it, catapulting it over the curb onto the parking, striking plaintiff and rendering him unconscious.
Various witnesses testified besides the plaintiff. As is usually the case, the testimony varies over a wide range, is difficult if not impossible to reconcile, and renders the facts actually existing shrouded in doubt and confusion. Appellants complain that some of the evidence tends to present a fantastic situation which could not have happened. Unfortunately, accidents of this kind happen so quickly and unexpectedly that the witnesses, being wholly unprepared for the eventualities, do not grasp all of the details at the time, and, when called upon to testify concerning them approximately a year later as in this case, do not give a strictly accurate account of the events that took place. Their estimates vary as to distances, speed of the vehicles, etc. This is due to the frailties of human nature. It does not mean that any witness desires to misrepresent or falsify. Such seems to be the situation here. In such a case, where the testimony is conflicting, it is for the jury to determine the credibility of the witnesses and ascertain the facts from the testimony. This court, on appeal, is required to view the evidence in the light most favorable to the party in whose favor the verdict was returned. So viewing the record, proper inferences to be drawn from the evidence may be at variance with the actual facts, could they be known. It is not for us to determine what the facts were but solely what the jury was warranted in finding them to be.
Of course, certain facts are established without dispute. There is no question but that the accident occurred at about 1:35 P. M. December 26, 1937, on 13th Street in Cedar Rapids; the street was icy; the plaintiff's car collided with the car parked in front of the library station, stopped some distance from it; the plaintiff was in the parking; the Voracek truck skidded around in the street, was struck by the defendants' truck, was catapulted into the plaintiff and plaintiff was injured as a result thereof. Thus far the picture is clear. When we undertake to fill in the details, our troubles begin.
One of the important details is the speed of the trucks involved. The estimates of the witnesses vary. To some the speed was slow, to others it was fast. The jury was warranted in finding that the defendants' truck was proceeding at a speed of approximately 20 to 25 miles per hour. The jury was also warranted in finding that, under the circumstances shown by the record, the speed was excessive and dangerous in view of the icy condition of the pavement.
Another important detail is the distance between the Voracek truck and the defendants' truck when the Voracek truck commenced to skid. Defendants contend that the two trucks were so close together that it was impossible for the defendant Williams to avoid the collision. However, the witness Kenneth Benesh, who was riding in the Voracek truck, testified definitely that, after the Voracek truck had skidded around and stopped facing north, he saw the defendants' truck coming from the north about 150 to 200 feet distant. As above indicated, this testimony does not coincide with the estimates of other witnesses, but was a factor that the jury was entitled to consider. If the jury believed him, the defendants' truck proceeded south for a distance of 150 to 200 feet with the Voracek truck in plain view, at rest headed in a northerly direction; the defendants' truck avoided the car parked in front of the library station, but was unable to avoid the Voracek truck, although its wheels were approximately two feet from the curb on the west side of the street, struck the Voracek truck and catapulted it against the plaintiff.
The defendant Williams was unable to attend the trial, being absent because of the funeral of his father. It was stipulated that he would testify that he was driving the defendants' truck at a speed of approximately ten miles per hour, following the Voracek truck at a distance of about 50 feet; when it started to skid, he attempted to turn to the left to avoid it, struck it as it was turning around in the street, causing it to go over the curb; he proceeded down the street a distance of 100 to 150 feet and stopped; it was possible for him to see down the street for a distance of several blocks.
The testimony of Williams is directly opposed to that of Benesh. Apparently the jury believed Benesh in preference to Williams. This was within their discretion. Consideration of the testimony of these two witnesses, together with the testimony of other witnesses which we do not set out at length, presented a disputed question of fact. On the whole, we are satisfied that a jury question was presented whether defendants were guilty of negligence that was the proximate cause of the injury.
The court's Instruction 9 interpreted Section 5029 of the Code, insofar as it imposes a duty upon the operator of a vehicle to refrain from driving at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. Several objections were asserted to said instruction. Only one is argued by appellants here. The contention here made is that, by the phrase, " assured clear distance ahead," the legislature meant the distance within which a driver can see objects on the highway ahead of him, and, since Williams testified that he could see for several blocks down the street, he was not violating the assured clear distance ahead rule because he could stop within the distance that he could see.
Appellants state: " To illustrate, if we assume that the defendant could see three blocks and could stop his truck in one...
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