Roberts v. Koons

• Decision Date: 18 March 1941
• Docket Number: 45341.
• Parties: ROBERTS v. KOONS.
• Court: Iowa Supreme Court

296 N.W. 811

230 Iowa 92

ROBERTS v. KOONS.

No. 45341.

Supreme Court of Iowa.

March 18, 1941

Appeal from District Court, Fayette County; T. H. Goheen, Judge.

Action at law for damages for death of guest in automobile from alleged recklessness of defendant driver. From judgment for plaintiff, defendant appeals. Opinion states the facts.

Reversed.

Antes & Antes, of West Union, for appellant.

Estey & Estey, of West Union, for appellee.

OLIVER, Justice.

The accident out of which this suit arose occurred March 14 1939, at about 10 p. m. Plaintiff-appellee's intestate Raymond Roberts, aged 21 years, while riding in a 1933 Ford Tudor coach as a guest of defendant-appellant, Jack Koons aged 23 years, was killed when said automobile collided with a parked truck. Koons was driving his Ford north on Primary Highway 11, a paved highway 18 feet in width, with dirt shoulders at each side. Raymond Roberts sat in the front seat and at the right. The night was dark and misty with poor visibility, and with sleet and a little dry snow, which a northwest wind at times whipped into gusts or flurries. During these flurries the visibility of the road ahead, from the headlights, was reduced from about 200 feet to about 20 feet or less. The pavement was dry. At the place of the accident the highway was straight and for about three-fifths of a mile to the south was practically level with a slight slope to the north. This place is several miles distant from any town. At the time there was little traffic on the highway and no vehicles or persons were in the vicinity other than the Ford and the truck and their occupants. The truck was a 1928 platform Chevrolet, weighing about 4,300 pounds, and was empty. The driver testified that it had been stopped for a short time with the headlight and tail-light on the left rear corner lighted but no flares had been put out; that he had just gotten into the cab to start it; that he saw the approaching Ford, or its lights, and that the truck was standing partly upon the east shoulder of the pavement, facing north, with only the left rear wheel upon the east edge of the pavement and the two front wheels entirely off the pavement on the right-hand or east side. Koons said the truck looked like it was on the pavement-it might have been a little off.

The Ford was travelling on the right-hand side of the pavement and its right front end struck the left rear corner of the truck. The force of the impact drove the truck forward and spun it half around. Burned rubber marks indicated its rear wheels slid along the east part of the pavement for about 39 feet. The left rear wheel of the truck was broken and torn off, the steel frame, rear axle and drive shaft were badly bent and it was otherwise damaged. One witness referred to it as a complete wreck. After the accident it lay on its left side facing southeast with its rear end on the east edge of the pavement. The Ford was not overturned and stopped on the left side of the pavement, facing northeast, its rear end 25 or 50 feet north of the truck. Rubber marks on the pavement indicated the rear wheels of the Ford had slid 87 feet and the front wheels 78 feet to the place where it stopped. The right side of the Ford was crushed and torn back to the rear quarter post, apparently from impact with the platform of the truck and the steel plate covering the platform. The radiator and grill of the Ford were not struck. The right front wheel of the Ford was pushed back under the frame and the tire was blown out. None of the other three tires was blown out. In addition to the physical facts, there was testimony from which the jury could have found the Ford was travelling at about 55 miles per hour, and that Koons later admitted he was driving too fast and couldn't see.

Defendant Koons testified he was driving 40 to 50 miles per hour; that his windshield was clear; that just prior to the accident a sudden flurry of snow obscured his vision; that he did not see the truck until it was directly in front of him; that he swung to the left trying to miss it; that he saw no tail-light; that he didn't know what he did about the brakes-" it all happened so quick" . Afterwards Koons, who had received some cuts and bruises, assisted the driver of the truck in removing Raymond (who was then dead or dying) from the Ford.

Motions of defendant for directed verdict were overruled, the jury returned a verdict for plaintiff, judgment was entered thereon and defendant has appealed.

I.

Over appellant's objections the trial court permitted witnesses to give opinion evidence as experts concerning the speed of the Ford. Mr. Stillwell, a highway patrolman, " from observing the truck and the automobile damage and bearing in mind the condition of the paving", expressed the opinion that the car was travelling at a high rate of speed. Mr. Campbell, a garageman who had handled wrecks, basing his opinion solely upon the extent of the damage to the car and the truck, said he thought the speed of the Ford was at least 55 to 60 miles an hour, and another garageman expressed the opinion it was travelling at a high rate of speed. Mr. Raney, a garageman, basing his opinion of the speed of the Ford solely upon the condition of the truck, testified the Ford would have to be travelling from 60 to 70 miles an hour to do that much damage. Upon cross-examination he said that was simply a guess; that the speed was over 40 miles an hour and would be closer to 50 than 45.

Mr. Stillwell testified to no qualifications other than those of an experienced automobile driver, and did not profess special skill, knowledge or experience in the subject matter upon which he expressed his opinion. Hence his competency as an expert was not shown. The opinions of the other witnesses were based solely upon the condition of one or both vehicles after the accident, and apparently did not take into consideration any other physical facts or circumstances shown in the record. We are satisfied these witnesses were not shown to be qualified to give opinion testimony as to the speed of the Ford (which the record shows without dispute was at least 40 to 50 miles per hour) based solely upon the condition of the vehicles after the accident. See Johnston v. Peairs, 117 Cal.App. 208, 3 P.2d 617.

In Nelson v. Hedin, 184 Iowa 657, 659, 169 N.W. 37, 38 we held that an opinion as to speed, based only upon skid marks,...