Rozmajzl v. Northland Greyhound Lines

• Citation: 49 N.W.2d 501,242 Iowa 1135
• Decision Date: 16 October 1951
• Docket Number: No. 47894,47894
• Parties: ROZMAJZL v. NORTHLAND GREYHOUND LINES et al.
• Court: Iowa Supreme Court

Page 501

49 N.W.2d 501

242 Iowa 1135

ROZMAJZL v. NORTHLAND GREYHOUND LINES et al.

No. 47894.

Supreme Court of Iowa.

Oct. 16, 1951.

Shull & Marshall, Sioux City, for appellant Northland greyhound lines.

Hutchison & Hurst, Sioux City, for appellant Sioux Lines, Inc.

Harper, Gleysteen & Nelson, Sioux City, for appellee.

GARFIELD, Justice.

Plaintiff was a passenger on a bus owned by defendant Sioux Lines, Inc., driven by one of its drivers. She was riding on a ticket from Omaha to Winnipeg sold by defendant Northland Greyhound Lines over a route for which it held the permit. She brought this action against both defendants to recover for personal injuries sustained in a collision between the bus and an automobile. Each defendant denied liability to plaintiff and alleged by cross petition against its codefendant it was entitled to full indemnity and judgment over against the codefendant.

Plaintiff recovered verdict and judgment against both defendants. The trial court rejected each defendant's claim for total indemnity against the other but held each was entitled to contribution from the other for half of any sum paid on the judgment. Each defendant appeals and assigns two errors. (1) Both defendants were entitled to a directed verdict against plaintiff because of insufficient showing of negligence. (2) Denial of its claim for full indemnity and judgment over against its codefendant.

On the day in question a Northland bus was unable, due to mechanical failure, to make its scheduled run from Sioux City, Iowa, to Luverne, Minnesota. Northland's driver arranged by telephone with Sioux Lines' manager to furnish a bus and driver for the run, to be paid by Northland on a 'per mile basis.' The arrangement was informal such as frequently made between bus lines, especially the two defendants, when there were mechanical failures or excess passengers.

Three days after the collision Northland's driver approved for payment a 'Driver's Purchase Order' asking Sioux Lines to furnish the bus involved in the accident and send its bill to Northland. This order, such as used for purchases of gasoline and oil, does not purport to fix the relation between the two defendants or liability as between them in case of accident.

Evidence for plaintiff is that she was a passenger on the bus seated in the front seat on the aisle behind the driver. Another passenger sat next to the window. There was a collision and the bus came to rest in the ditch at the right of the pavement. Plaintiff was seriously injured and didn't know how the accident happened.

Northland produced the testimony of Steffens who arranged for the bus from Sioux Lines, took the tickets and rode on the bus. He said the bus was traveling north on its right side of the center line about 45 miles per hour. The right wheels of a southbound automobile got off the west side of the pavement. The automobile was then turned to the left (east), skidded in front of the bus and the collision occurred. 'It was raining at the time. The pavement was wet and sloppy. Some mud and slush on it. It was a little slippery. They were building the adjoining highway to make it a four-lane highway. We were on the old paving. Trucks working on the new highway were using this old paving to get back and forth to the new road. Some of the muck and slush on the pavement came from these trucks. * * * My best estimate is that the bus was going about 45 miles an hour. I doubt if it could have been more but so far as I know it probably could have been.'

Sioux Lines' manager and Munster, who drove the bus, testified for Sioux Lines. Both said the bus was equipped with a 'governor' which limited its speed to 45 miles per hour and the bus was in good mechanical order. Munster testified he first saw the oncoming automobile when it was 400 to 600 feet away. When it was about 50 feet from the bus it ran off on the shoulder, was pulled back on the pavement (18 feet wide) and skidded in front of the bus. 'When I first saw the car drop off the pavement I let up on the gas feed and when it skidded I immediately applied brakes. * * * I estimate the speed of the Kinney car between 55 and 60 miles per hour and of the bus just before the impact at 40 miles per hour.' Munster frequently traveled this road before the accident and was familiar with it. The routes of the two defendants' lines were the same from the outskirts of Sioux City to beyond the place of the collision.

Defendants produced no other evidence relating to the accident. There were 22 passengers on the bus.

I. A carrier of passengers for hire must exercise more than ordinary diligence for their protection. Its duty stops just short of insuring their safety. It is bound to protect its passengers as far as human care and foresight will go and is liable for slight negligence. Kliebenstein v. Iowa R. & L. Co., 193 Iowa 892, 895, 188 N.W. 129, and citations; Womochil v. Peters, 226 Iowa 924, 929, 285 N.W. 151, 153; Murray v. Cedar Rapids City Lines, Iowa, 48 N.W.2d 256, 260. See also 13 C.J.S., Carriers, § 678a; 10 Am.Jur., Carriers, section 1246; Annotation 69 A.L.R. 980. '* * * the high degree of care must be exercised in foreseeing, as well as in guarding against, danger.' Murray case, supra.

Plaintiff made a prima facie case by showing she was injured while a passenger on the bus by a collision between the bus and the automobile. This cast upon defendants the burden to show their freedom from negligence in causing the collision. Plaintiff was not bound to prove any particular act of negligence by defendants. Crozier v. Hawkeye Stages, 209 Iowa 313, 318, 319, 228 N.W. 320, and citations; Arnett v. Illinois Cent. R. Co., 188 Iowa 540, 542, 176 N.W. 322, and citations; Article by Harry G. Slife, 35 Iowa Law Review 393, 400; Gleeson v. Virginia Midland Railroad Co., 140 U.S. 435, 443, 444, 11 S.Ct. 859, 862, 35 L.Ed. 458, 463.

The authorities make it plain it is usually a question for the jury whether such a prima facie case has been met. We do not think defendants succeeded in rebutting the prima facie case here so conclusively that they were entitled to a directed verdict.

The jury could properly find the weather and road construction work at the scene of the accident made driving unusually hazardous. The bus driver saw the Kinney automobile 400 to 600 feet away. An experienced bus driver like Munster, using a high degree of care, could have anticipated the Kinney car might get into trouble under such conditions of weather and road and reduced the speed of the bus. Yet there is evidence for defendants the bus was traveling at or near the maximum speed of 45 miles per hour then (1948) permitted by statute, section 321.287, Code, 1946, I.C.A., under the best weather and road conditions as well as by the 'governor' on the bus. Reasonable minds could find this was not the high degree of diligence a carrier owes its passengers and was at least slight negligence.

Even an automobile driver required to use only ordinary care does not necessarily do so by complying with statutory provisions. Statutes prescribe only the minimum of prudent conduct. Langner v. Caviness, 238 Iowa 774, 779, 28 N.W.2d 421, 424, 172 A.L.R. 1135, 1138; Knaus Truck Lines v. Commercial Freight Lines, 238 Iowa 1356, 1365, 29 N.W.2d 204, 209; Van Wie v. U. S., D.C.Iowa (Judge Graven), 77 F.Supp. 22, 37. 'A motorist should not operate his vehicle up to the speed limit of the statute * * * if the circumstances are such that reasonable and ordinary care and prudence require a less speed. (Citations.)' Richards v. Begenstos, 237 Iowa 398, 408, 21 N.W.2d 23, 28.

Defendants' argument that they have conclusively established the sole cause of the collision was Kinney's negligence cannot be accepted. That it was a concurring cause may be conceded. Of course Kinney was required to exercise only ordinary care. Kinney's conduct would not relieve defendants if, as we have indicated, the bus driver, in the exercise of a high degree of care, might reasonably have foreseen it or similar conduct. See Knaus Truck Lines v. Commercial Freight Lines, supra, at page 1366 of 238 Iowa, page 209 of 29 N.W.2d, and citations; Primus v. Bellevue Apts., 241 Iowa 1055, 1063, 1064, 44 N.W.2d 347, 352, 353, and citations; Kliebenstein v. Iowa R. & L. Co., supra, 193 Iowa 892, 188 N.W. 129; 38 Am.Jur., Negligence, sections 70, 72; 65 C.J.S., Negligence, § 111f, page 697.

Further, the only witnesses by whom defendants sought to rebut plaintiff's prima facie case were employees who were interested witnesses. There were many disinterested persons defendants might have called to testify. Kinney died as a result of the collision and was unable to relate his version of it. (We understand he was alone in the automobile.) Under these circumstances the credibility of defendants' witnesses was for the jury. Southern Railway Co. v. Hussey, 8 Cir., 42 F.2d 70, 74 A.L.R. 1172, 1178; Affirmed 283 U.S. 136, 51 S.Ct. 367, 75 L.Ed. 908; Terminal R. Ass'n of St. Louis v. Staengel, 8 Cir., 122 F.2d 271, 136 A.L.R. 789, 794; Gilchrist v. Boston Elevated R. Co., 272 Mass. 346, 172 N.E. 349, 350, 351; Continental Ins. Co. v. Chicago & N. W. R. Co., 97 Minn. 467, 107 N.W. 548, 5 L.R.A.,N.S., 99, 108; Gaffney v. New York Consol. R. Co., 220 N.Y. 34, 114 N.E. 1047, 1048; Shaughnessy v. Director General of Railroads, 274 Pa. 413, 118 A. 390, 23 A.L.R. 1211, and Annotation 1214. See also Larkin v. Chicago & G. W. Ry. Co., 118 Iowa 652, 657, 92 N.W. 891.

II. As defendant Northland Lines concedes, it is liable to plaintiff if (as the jury found) she was injured because of the negligent operation of defendant Sioux Lines' bus. This is because Northland could not evade its duty to its passengers by engaging it codefendant to perform that duty. See Costello v. Smith, 2 Cir., 179 F.2d 715, 717, 16 A.L.R.2d 954, 958, and citations, and Annotation 960; Southern Railway Co. v. Hussey, supra, 42 F.2d 70, 74 A.L.R. 1172, 1175, and...