Roushar v. Dixon

• Decision Date: 10 March 1942
• Docket Number: 45910.
• Citation: 2 N.W.2d 660,231 Iowa 993
• Parties: ROUSHAR v. DIXON.
• Court: Iowa Supreme Court

2 N.W.2d 660

231 Iowa 993

ROUSHAR v. DIXON.

No. 45910.

Supreme Court of Iowa

March 10, 1942

Talbott & Talbott, of Brooklyn, and E. P Cronin, of Victor, for appellee.

Hallagan, Fountain, Steward & Cless, of Des Moines, and McFarlin & McFarlin, of Montezuma, for appellant.

STIGER, Justice.

The accident happened on a dirt road near the crest of two steep hills a short time before noon on July 23, 1940. Plaintiff's intestate, Reverend Robert Rubart, was taking some children to their homes in his automobile after attending a Bible class. In the front seat with Mr. Rubart were three children ages 7, 5, and 4, and Margie Lyman, 14 years old, a witness for plaintiff, was in the back seat.

Walter Kahler, driver of defendant's truck, was approaching the crest from the south and Reverend Rubart was approaching from the north. The collision occurred about 25 feet north of the crest.

Section 5031.03, 1939 Code, reads in part as follows: "5031.03 Control of vehicle--signals. The driver of a motor vehicle traveling through defiles or on approaching the crest of a hill or grade shall have such motor vehicle under control and on the right-hand side of the roadway" etc.

Section 5000.01, subsection 47, 1939 Code reads: "47. 'Roadway' means that portion of a highway improved designed, or ordinarily used for vehicular travel."

Each party claims the other violated section 5031.03.

I. Defendant's first assignment of error is that the court erred in overruling Ground One of his motion for a directed verdict which alleged decedent was contributorily negligent as a matter of law.

Margie Lyman testified that as Mr. Rubart drove south up the hill his car was on the west side of the road and continued up the hill three of four feet from the west shoulder of the grade and that she saw the truck coming over the top of the hill and at the time of the collision it was a little to the left of the center of the automobile.

Defendant claims this testimony is without probative value in view of the statements of the witness on cross examination. We will refer to the cross examination.

"Q. As you proceeded up that hill, what was the first thing you noticed before this accident occurred? A. I had been looking across the road into the field, but after I looked around the first thing I noticed was the truck.

"Q. Which field had you been looking into? A. The west field."

The witness then testified in substance that she had been gazing in that direction (towards the west field) since the car began its ascent of the hill; that she looked back when Mr. Rubart said "Uh Oh!" and she then saw the truck. The witness further testified:

"as we crossed the bridge down at the foot of the hill we were pretty close to the west edge of the bridge and I was looking out in the field.

"The road we were traveling over was a dirt road and dry.

"We folks started out from a stop down there at the Yount residence (located just north of bridge at foot of hill) and picked up speed from there. That speed was very gradually increased as we proceeded on up the hill.

"I was seated in the back seat of the car and from the time we left the Yount residence until I heard Reverend Rubart say 'Uh Oh!' I was looking out into this field. During that time I never looked ahead down the highway at all."

It is quite obvious the witness was not looking straight west into the field during the journey from the Yount residence up the hill. Although she did not look straight ahead down the roadway until she heard Mr. Rubart's exclamation, it is apparent that, during the ascent, her vision included at least the west one-half of the road as she looked in the direction of the west field. During the time she states she was looking across the road into the field she observed the automobile was close to the west side of the bridge, that it continued up the hill on the west side of the road, and realized the speed was gradually increased as the car proceeded up the hill. At the time of the collision decedent was driving about 20 miles per hour. We cannot agree with the defendant's proposition that the testimony of this witness is without probative value. The fact that after the collision the Rubart car was near the west edge of the roadway and all the wreckage of this car was between it and the center of the road, that is, west of center, tends to support the testimony of this witness.

Defendant further claims the undisputed evidence is that the tracks and skid marks made by the left tires of decedent's automobile just prior to and at the time of the collision were east of the center of the road, and that the tracks made by the truck were all east of the center of the road. The evidence in regard to the tracks and skid marks is unsatisfactory, contradictory and inconclusive. The physical facts relied on by defendant fall far short of refuting and overcoming the testimony of the witness Margie Lyman. There was a substantial conflict in the evidence on the question of contributory negligence. We find no error in this assignment.

II. The defendant's contention that there was not sufficient evidence of negligence on the part of the defendant to submit this issue to the jury cannot be sustained. The only specification of negligence of defendant submitted to the jury was that he violated section 5031.03. There was ample evidence in the record to justify the submission of this issue to the jury.

III. The defendant claims the court erred in admitting in evidence statements made by the driver of the truck, Frederick Kahler as res gestae.

A witness for plaintiff testified that he arrived at the place of the accident about ten minutes after it occurred at which time only the decedent and Kahler were present. Mr. Rubart was lying in the ditch and Kahler was supporting his head. The witness testified that Kahler asked him to hold the head of decedent and said he wanted to get out of there and wanted to know if the witness thought "they would hang him" or would "send him to the penitentiary" and stated "he wished a doctor would come." The witness stated Kahler was nervous, worried and "terribly upset."

Dr. Clark testified that when they moved decedent from the ditch Kahler was greatly perturbed and excited and said: "Doctor, do you think they will put me in jail?" In Stukas v. Warfield-Pratt-Howell Co., 188 Iowa 878, loc. cit. 888, 175 N.W. 81, loc. cit. 84, the opinion states:

"We have repeatedly said that the proper test of admissibility of such statements is whether they relate to the principal transaction and are explanatory of it and are made under such circumstances of excitement still continuing as to show they are spontaneous and not the result of deliberation or design. Within this general rule the admissibility of the declaration under the circumstances of the particular case is largely within the discretion of the trial judge. The facts and circumstances of no two cases can be precisely alike and the exact length of time is not mathematically controlling. (See Christopherson case, supra [Christopherson v. Chicago, M. & St. P. R. Co., 135 Iowa 409, 109 N.W. 1077, 124 Am.St.Rep. 284]); and this idea is in substance restated in the Westcott case, supra [Westcott v Waterloo, C. F. & N. R. Co., 173 Iowa 355, 155 N.W. 255], which is relied upon by the appellant. * * *

"In Insurance Company v. Mosley, 8 Wall. 397, 19 L.Ed. 437, the Supreme Court of the United States says of the res gestae rule that--

"'The tendency of recent adjudications is to extend rather than to narrow the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its...