Robeson v. Dilts, 53430

• Decision Date: 05 September 1969
• Docket Number: No. 53430,53430
• Parties: Leatrice ROBESON, Administrator of the Estate of Edward D. Robeson, Deceased, Appellee, v. Clifford DILTS and Kenneth Earl Brockman, Appellants.
• Court: Iowa Supreme Court

Page 408

170 N.W.2d 408

Leatrice ROBESON, Administrator of the Estate of Edward D. Robeson, Deceased, Appellee, v. Clifford DILTS and Kenneth Earl Brockman, Appellants.

No. 53430.

Supreme Court of Iowa.

Sept. 5, 1969.

Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellants.

McCarville & Bennett, Fort Dodge, for appellee.

LeGRAND, Justice.

This litigation results from a fatal automobile accident which occurred on U.S. Highway 20 approximately ten miles west of Fort Dodge, Iowa. Suit was brought by Leatrice Robeson, Administrator of the Estate of Edward E. Robeson, deceased, who died in the crash, against Clifford Dilts, owner of the semi-trailer truck with which decedent collided, and Kenneth Earl Brockman, driver of the rig. A jury trial resulted in a plaintiff's verdict for $62,500.00. Both defendants appeal. We refer herein to the driver as through he were the only defendant, but our conclusions apply equally to the other defendant.

At the time of the accident the decedent was driving his truck in a westerly direction on highway 20. Defendant was proceeding in an easterly direction on the same highway. There was an extremely hard rain and visibility was poor. Most vehicles, including decedent's, were operating with lights on. Approximately four miles before reaching the scene of the accident defendant had switched off his headlights because his alternator was not working. He then turned his parking lights on. The collision took place in a curve to decedent's right and a corresponding curve to defendant's left. There was a yellow, no-passing line, against traffic bound for Fort Dodge, the direction in which decedent was travelling. There was also a no-passing sign against such traffic posted by the Iowa State Highway Commission.

The collision was practically head-on. The front ends of both vehicles were badly damaged with the brunt in each case on the right side. The collision could not have occurred unless one, or both, vehicles had crossed the center line. The only eye witness to the accident is the defendant Brockman. Decedent was killed outright. While other witnesses testified to events immediately preceding impact, there was no witness who saw the collision.

The main factual dispute concerns the position of each vehicle with reference to the center line of the road and the legal consequences which flow therefrom. Evidence with respect to this matter is detailed later.

Defendant assigns four errors. They are: (1) failure of the court to grant his motion for directed verdict and, later, his motion for judgment notwithstanding the verdict; (2) error in admitting testimony on weather conditions and visibility existing at places other than the site of the accident; (3) error in admitting opinion evidence on the course of travel of the vehicles immediately after impact; and (4) error in both the form and content of various instructions.

I. We consider first defendant's claim he was entitled to a directed verdict. Defendant moved for such a ruling both at the end of plaintiff's evidence and at the end of all of the testimony. We also asked for this result by way of motion for judgment notwithstanding the verdict, and his motion for new trial incorporates this as one of its principal grounds.

The sole ground of the motion asserted decedent was guilty of contributory negligence as a matter of law because he was violating section 321.304, Code of Iowa, which provides in part:

'No vehicle shall, in overtaking and passing another vehicle or at any time, be driven to the left side of the roadway under the following conditions: 1. When approaching the crest of a grade or curve in the highway where the driver's view along the highway is obstructed for a distance of approximately 700 feet.

'2. * * *

'3. Where official signs are in place directing that traffic keep to the right or a distinctive center line or off-center line is marked, which distinctive line also so directs traffic as declared in the sign manual adopted by the state highway commission.'

There is no dispute that the accident occurred in a curve and that decedent would be in violation of section 321.304 if he had driven over the center line of the highway without legal excuse. Such a violation would be negligence per se. Florke v. Peterson, 245 Iowa 1031, 1034, 65 N.W.2d 372, 374; Kroblin Refrigerated X Press Inc. v. Ledvina, 256 Iowa 229, 234, 127 N.W.2d 133, 137.

In considering this assignment of error we consider the evidence in its light most favorable to decedent. Rule 344(f), 2, Rules of Civil Procedure. We mention, too, that the question of decedent's contributory negligence is to be determined under the statute which established a new rule by requiring a defendant who relies on contributory negligence as a complete bar to a plaintiff's claim to both plead and prove this affirmative defense. The statute places on the defendant the burden of proving both the plaintiff's negligence and that such negligence was a proximate cause of the accident for which recovery is sought.

Defendant testified decedent's car was on the wrong side of the road for 200 or 300 feet prior to the crash; that he expected it to turn back to its own side of the road; and that when it became apparent the driver was not going to do so he applied his brakes, causing his equipment to jack-knife. Until that time, defendant says he was at all times completely on his own side of the road and the only reason for the accident was the unexplained presence of decedent on the left side of the highway.

Two highway patrolmen testified and the admissibility of some of their evidence is discussed later. For the time being, we merely recite what they said. Both were men of long experience on the highway patrol who had investigated hundreds of accidents. Officer Stinman had 12 years of service on the patrol and had investigated more than 1000 accidents besides assisting in the investigation of several hundred more. Officer Weiland, with more than 10 years on the patrol, had investigated some 400 accidents and had assisted with the investigation of many others.

They placed the point of impact 'on the center line.' They also verified pictorial evidence showing the principal damage to each vehicle was at the right front. It is mainly from this testimony that defendant argues the decedent is shown to have been in violation of section 321.304 as a matter of law.

He argues that if the impact point was the center of the highway, and if the brunt of the impact was at decedent's right front, it necessarily follows part of the left side of decedent's car was over the center line. We agree this is a plausible argument and one which might very well have been persuasive with the jury, but we do not agree it establishes violation of the statute As a matter of law.

We believe it must be conceded that in estimating speed, fixing impact points and placing the position of vehicles, we cannot deal in inches or fractions of seconds. Mathematical certainty and slide-rule precision cannot be expected. Law v. Hemmingsen, 247 Iowa 855, 860, 76 N.W.2d 783, 786. The officers' testimony as to the point of impact was based upon certain physical evidence, including a gouge and other marks in the pavement, the location of debris, the place where the vehicles came to rest, and the damage to the vehicles. This was introduced as Opinion evidence. The very nature of such evidence eliminates the dogmatic answer, and it is for the jury to evaluate and appraise the opinions given. Schantz v. Schantz, Iowa, 163 N.W.2d 398, 404.

We do not minimize the importance of the testimony which defendant relies on to support his argument on this assignment. We merely say it did not establish decedent's contributory negligence As a matter of law.

It is only in exceptional cases that matters of negligence, contributory negligence, or proximate cause are taken from the jury and decided as questions of law. Rule 344(f), 10, Rules of Civil Procedure; Weppler v. Smith, 252 Iowa 679, 685, 108 N.W.2d 247, 251; Mazur v. Grantham, 255 Iowa 1292, 125 N.W.2d 807, 810; Grosjean v. Spencer, 258 Iowa 685, 688, 140 N.W.2d 139, 141; Marean v. Petersen, 259 Iowa 557, 570, 144 N.W.2d 906, 914; Giarratano v. Weitz Co., 259 Iowa 1292, 1310, 147 N.W.2d 824, 835.

Defendant argues this is one of those exceptional cases, but we cannot agree. It is within the jury's province to disbelieve defendant's testimony concerning decedent's position on the road prior to the accident; and, as already pointed out, the jury may give the opinion evidence of the two officers the weight they believe it entitled to.

To support plaintiff's theory, there is substantial physical evidence which tends to refute defendant's version. The gouge mark from decedent's truck was on his side of the road. All the debris was on his side. Defendant's tractor and trailer came to rest on that side, too, completely blocking the westbound lane to traffic. Defendant admits his tractor jack-knifed before the collision. We have held several times contributory negligence may be shown, or disproved, by circumstantial evidence or by physical facts. Weppler v. Smith, supra; Mathews v. Beyer, 254 Iowa 52, 58, 116 N.W.2d 477, 481; Marean v. Petersen, 259 Iowa 557, 569, 144 N.W.2d 906, 914. See also Yost v. Miner, Iowa, 163 N.W.2d 557, 560.

We have also held if a litigant's theory finds 'rational and reasonable support' in the evidence he is entitled to have it go to the jury. Law v. Hemmingsen, supra, 247 Iowa at page 861, 76 N.W.2d 783.

There is an additional reason for our conclusion. Since the enactment of section 619.17, a defendant who relies on plaintiff's contributory negligence must not only prove such negligence but must prove too it was a proximate cause of the accident. Prior thereto negligence on the part of a plaintiff which contributed in any way to the injury was sufficient. See Harlan v. Passot, 260 Iowa 501, 505, 150 N.W.2d 87, 90.

Even assuming,...