Rich v. Herny
| Decision Date | 27 October 1936 |
| Docket Number | 43489. |
| Citation | 269 N.W. 489,222 Iowa 465 |
| Parties | RICH v. HERNY. |
| Court | Iowa Supreme Court |
Appeal from District Court, Jasper County; J. G. Patterson, Judge.
Action at law for damages for injuries alleged to have been sustained by the plaintiff as the result of an automobile accident in which an automobile in which she was riding was struck by an automobile owned and driven by the defendant. From a verdict and judgment in favor of the plaintiff, the defendant appeals.
Reversed.
Korf & Korf, of Newton, and Putnam, Putnam, Fillmore & Putnam, of Des Moines, for appellant.
Ralph N. Lynch, of Des Moines, and Cross & Hamill, of Newton, for appellee.
The accident out of which this case arose happened on United States paved highway No. 63 (now No. 163), about one mile east of the city limits of the city of Des Moines, Iowa, on the 17th day of November, 1934, between 5 and 6 o'clock in the evening. The plaintiff was riding as a guest in a car owned and being driven westward by one McDermott, and defendant was driving his automobile eastward on said highway. Some distance east of the place where the accident occurred another car, also being driven westward by one Godfroy, passed the car in which the plaintiff was riding and was ahead of it at the time and place of the accident. Still another car, the description and owner of which are unknown, was proceeding eastward in front of the car owned and driven by the defendant. From a point a short distance east of where the accident occurred there is a descending grade westward toward an overhead railroad crossing which crosses the highway a short distance west of where the accident occurred. At the point east of the scene of the accident, where the grade begins to descend to the westward there is a change in the grade and, from that point eastward there is also a descending grade. It appears without dispute in the evidence that the Godfroy car, after it had passed the McDermott car in which plaintiff was riding, had gone over this high point where the grade changes, and was temporarily out of sight of the McDermott car. As this grade descends to the westward toward the overhead railroad crossing, there is an unpaved road leading from the south side of the paved road toward the southwest, and immediately east of this unpaved road there are two lanes extending southward from the paved highway toward farm houses which are situated on the south side of the paved road. Immediately east of the most easterly of these two lanes, and on the south side of the paved road, there are two mail boxes belonging to persons living on the south side of the road. The evidence is that the collision between the McDermott car and the defendant's car occurred on the north side of the paved road just opposite or north of these mailboxes. The plaintiff's evidence shows that by measurement the distance between these two mailboxes and the west edge of the graveled road which leads to the southwest is 180 feet. As the car in which plaintiff was riding came over the brow of the hill from the eastward and began to descend the grade to the westward, the Godfroy car was ahead of it and was approaching or had already reached a point in the paved road north of and about opposite the entrance to the unpaved road leading from the south side of the pavement to the southwest. The evidence shows that, when Godfroy had reached this point, he turned his car toward the southwest for the purpose of entering this unpaved road, and that, in doing so, the Godfroy car came in contact with the left rear portion of the defendant's car, and the defendant's car then proceeded northeasterly across the north portion of the paved highway, and the right front portion of the defendant's car came into contact with the left front portion of the McDermott car, in which plaintiff was riding, and which was then partly upon the north shoulder of the paved road.
The grounds of negligence alleged in the petition and submitted to the jury are that defendant was driving his car with such a lack of control that he could not stop it within the assured clear distance ahead; that he failed to reduce the speed of his car to a reasonable and proper rate, or to have the same under control when meeting the car in which plaintiff was riding; that he failed to turn to the right and yield one-half of the traveled way when meeting the car in which plaintiff was riding; and that he was driving at an excessive rate of speed under the circumstances existing at the time of the collision. The answer of the defendant admitted the occurrence of the accident, but denied generally all other allegations of the petition, and specifically denied that the accident was caused in any manner by reason of the fault or negligence of the defendant. Upon the trial of the case the jury returned a verdict in favor of the plaintiff, and judgment was entered thereon. A motion for new trial and exceptions to instructions, filed by the defendant, were overruled. From the judgment and rulings of the court, the defendant appeals.
In the alleged errors numbered 1 and 2 relied on by appellant for reversal, it is claimed that the court erred in overruling defendant's motion for a directed verdict and in overruling his motion for a new trial, as to the grounds of said motions which asserted that there was no evidence from which the jury could properly find that the injuries sustained by the appellee were caused by any negligence on the part of appellant. It is contended by the appellant that there was no evidence that the defendant's car was at any time to the left or north of the middle of the paved highway until after it had been hit by the Godfroy car and thus thrown out of control, and that the loss of control by appellant of his car was due to the fact that the rear portion of his car was struck by the Godfroy car, and that this threw appellant's car around so that it was headed northeast and made it impossible for him to control it or prevent it from traveling across to the north portion of the highway and into collision with the McDermott car.
The appellee, on the other hand, contends that the facts shown by the evidence in this case make a clear question for the jury as to whether or not the collision and injuries to appellee were caused by the negligence of the appellant. Appellee calls attention to the evidence which she claims shows that, prior to the time that the Godfroy car struck the rear of the appellant's car, the appellant's car was to the left or north of the middle of the road; that at that time the appellant was driving his car at a speed of 50 miles per hour and at a distance of only 8 feet from the rear of the car which was preceding him; that the night was dark and misty, the visibility poor, and the pavement wet and slippery; that there were four cars on the highway in proximity to the place of the accident at the time it occurred; that after the contact between the Godfroy car and appellant's car the appellant's car traveled approximately 180 feet before hitting the McDermott car; that the appellant dropped his hand from the steering wheel and, in an attempt to step on the brake, he stepped on the accelerator.
We feel compelled to agree with the appellant that there is no evidence from which the jury could find that, prior to the time that the Godfroy car struck his car, the appellant was driving his car to the north or left of the middle of the paved road. Neither the appellee nor McDermott, the driver of the car in which she was riding, claimed to have seen the appellant's car at the time or immediately before it was struck by the Godfroy car, and the only evidence upon which appellee seems to rely, to show that the appellant's car was to the north or left of the middle line of the pavement is the statement of the defendant's witness, Schweiker, who was a passenger in the Godfroy car, that the contact between the cars took place either on or south of the black line, and the testimony of McDermott that, after the accident, the Godfroy car was standing with its front wheels exactly in the center of the pavement. We cannot agree with the theory that the testimony of the witness, Schweiker, that the contact between the Godfroy car and the appellant's car occurred either on or south of the black line, presents a state of facts under which the jury might be allowed to determine that the contact between these cars occurred on the middle line of the road. The statement made by the witness does not fix the position of the point of contact between appellant's car and the Godfroy car with any definiteness whatever. If the statement of the witness had been that the contact occurred to the north of or to the south of the middle line of the road, we think it would have furnished just as much of a basis, upon which the jury could determine the point where the contact occurred, as does the testimony actually given by him. Nor does the fact that McDermott testified that, after the accident, the wheels of the Godfroy car were actually on the middle of the pavement present a situation under which the jury could determine that, when the contact occurred, the defendant's car must have been on the wrong side of the road. If the bottom portion of the wheel or wheels which was in actual contact with the pavement was actually on the middle of the pavement, then it is obvious that at least the front portion of such wheel or wheels must have been south of the center of the pavement. For all that appears in the evidence, there may have been at least some portion of the Godfroy car which projected ahead of the front wheels, and which might have made contact with the defendant's car while the latter was still on the south half of the pavement, and there is no...
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