Ruble v. Carr, 48240

• Decision Date: 09 June 1953
• Docket Number: No. 48240,48240
• Citation: 244 Iowa 990,59 N.W.2d 228
• Parties: RUBLE v. CARR.
• Court: Iowa Supreme Court

Page 228

59 N.W.2d 228

244 Iowa 990

RUBLE v. CARR.

No. 48240.

Supreme Court of Iowa.

June 9, 1953.

Stuart & Stuart, of Chariton, for appellant.

Bannister, Carpenter, Ahlers & Cooney, of Des Moines, and A. V. Hass, of Chariton, for appellee.

GARFIELD, Judge.

Plaintiff Ronald Ruble, age 20, brought this law action against defendant Leo Francis Carr, 19, to recover for personal injuries and damage to his Oldsmobile from a head-on collision with a Ford car driven by defendant. The collision occurred about one a. m., February 19, 1951, about five miles east of Chariton on paved U. S. Highway 34. Plaintiff was driving west, defendant east. It is admitted it was very foggy and visibility very limited. Both cars were badly wrecked. Three boys riding with defendant in the Ford all died of injuries received in the wreck. Plaintiff was so injured he remembered nothing that happened between the forenoon of February 18 and March 6.

At the trial to the court without a jury plaintiff relied on circumstantial evidence and a claimed declaration of defendant. Principal evidence for plaintiff are photographs taken by the sheriff soon after the wreck showing the damage to the two cars and their position on the highway. A state highway patrolman described the location of the vehicles following the collision in accord with what the photographs show. In view of plaintiff's loss of memory and death of the three boys defendant is the only living eyewitness to the wreck. (We use the term now without reference to the no eyewitness rule.) Defendant gave his version of what occurred and there was some other testimony for defendant.

The trial court held defendant was negligent in failing to give half the traveled way by turning to the right in violation of section 321.298, Code, 1950, I.C.A., but that plaintiff failed to establish his freedom from contributory negligence. Accordingly judgment was entered for defendant. Upon this appeal plaintiff maintains he was entitled to recover as a matter of law because he says his freedom from contributory negligence was conclusively established. He also asserts he was not accorded the full benefit of the no eyewitness rule.

Perhaps we might properly affirm this case on the ground urged by defendant that, so far as the record shows, plaintiff made no claim in the trial court he was entitled to recover as a matter of law and such contention is first advanced in this court. We prefer however not to dispose of the appeal on the ground suggested.

It is obvious plaintiff assumes a heavy burden in attempting to sustain the contention he was entitled to recover as a matter of law. His burden is much greater than if a jury verdict had been directed against him on the ground the evidence was insufficient and plaintiff were here contending the evidence would support a recovery. Our problem is not whether the evidence was such as to permit recovery but whether it was so conclusive as to compel recovery. See Carlson v. Bankers Trust Co., 242 Iowa 1207, 1218, 1219, 50 N.W.2d 1, 8; Davis v. Knight, 239 Iowa 1338, 35 N.W.2d 23; Roth v. Headlee, 238 Iowa 1340, 29 N.W.2d 923; Wilkins v. Howell, 194 Iowa 654, 190 N.W. 1.

The case is not reviewable de novo here but only upon the errors assigned. Rule 334, Rules of Civil Procedure; Davis and Roth cases, supra; In re Estate of Puckett, 240 Iowa 986, 1000, 1001, 38 N.W.2d 593, 600, 601; Haack v. Rodenbour, 234 Iowa 368, 369, 370, 12 N.W.2d 861, 862. The court's findings of fact have the effect of a jury verdict. Ibid.

Plaintiff had the burden to establish his freedom from contributory negligence. In the absence of an admission by his adversary it is not often that one who has the burden on an issue establishes his claim as a matter of law. Cole v. Hartford Accident & Indemnity Co., 242 Iowa 416, 421, 46 N.W.2d 811, 814, and citations; Davis v. Knight, supra, 239 Iowa 1338, 1343, 35 N.W.2d 23, 26, and citations.

The rule just stated is specially applicable where the issue is one such as contributory negligence which we have held time and again is ordinarily for the jury. Davis v. Knight, supra, at pages 1341-1342 of 239 Iowa, at page 25 of 35 N.W.2d, and citations; Coleman v. Iowa Ry. & Light Co., 192 Iowa 1331, 1333, 186 N.W. 642, 644, Weaver, J., where we say: 'The burden of showing due care by the injured person is on the plaintiff, and it rarely occurs that the court is justified in ruling that such burden has been conclusively satisfied.' See also Brown v. Compton & Roush, Inc., 243 Iowa 665, 53 N.W.2d 164, 167; Weber v. Hanson, 241 Iowa 904, 909, 43 N.W.2d 766, 769; McSpadden v. Axmear, 191 Iowa 547, 551, 181 N.W. 4.

Since plaintiff contends he would have been entitled to a directed verdict if there had been a jury trial it is our duty to consider the evidence in the light most favorable to the trial court's judgment. Davis v. Knight, supra, at page 1342 of 239 Iowa, at page 25 of 35 N.W.2d, and citations. We first consider, without regard to the no eyewitness rule, the evidence bearing on the issue of plaintiff's freedom from contributory negligence.

Following the collision the Ford driven by defendant was headed about straight east, parallel with the highway, with its right (south) wheels just south of the center line and its left (north) wheels just north of the yellow, no-passing line in the middle of the north half of the highway. The Ford thus occupied the south half of the north (plaintiff's) lane of the 18-foot highway.

Plaintiff's Olds was headed northwest with its left (south) front and right (north) rear wheels on or very near the center line of the highway. The center line thus bisected the Olds diagonally from left front to right rear so about half the car was on either side of the center. Each car was headed toward the other although, as stated, the Olds was not parallel with the highway. The front ends of the two cars were seven to nine feet apart. Damage to the vehicles indicates the collision was head-on or nearly so.

The trial court found neither car was entirely on its right side of the highway at the time of the collision. There is sufficient evidential support for the finding plaintiff's Olds was not entirely on its right (north) half of the highway when the cars met. The location of the Olds diagonally across the center line with its left rear on defendant's side of the highway, as above explained, is substantial evidence of this, in addition to the oral testimony of defendant.

There is other evidence plaintiff was not free from contributory negligence. Defendant testified he was watching down the road at all times and that plaintiff's lights were not on when the cars met. This is corroborated by testimony of a former state highway patrolman that when he reached the scene at 1:15 he examined the interior of the Olds and observed the light switch was off. There is no evidence plaintiff's car was lighted. There is nothing improbable about the testimony its lights were off. Cars are sometimes driven without lights in a heavy fog after dark although of course it is very dangerous.

The trial court further found the demolished condition of both vehicles points to considerable speed of one or both and their location indicates they had about the same speed at the time of impact. This finding too is warranted. Defendant testified the Olds was going fast but he did not see it a sufficient time before the impact to judge how fast.

It is apparent freedom from contributory negligence does not conclusively appear unless the no eyewitness rule entitles plaintiff to such a holding. We are clear that application of this rule leaves the issue of freedom from contributory negligence one of fact, not of law.

The rule referred to is that where there is no eyewitness and no obtainable direct evidence as to what a decedent did or failed to do by way of precaution at and immediately before his injury there is an inference he was in the exercise of ordinary care for his own safety. Smith v. Darling & Co., Iowa, 56 N.W.2d 47, 51, and citations.

The no eyewitness rule may also apply where the injured person survives but is unable to testify to the occurrence because of amnesia resulting therefrom. Ibid.; Prewitt v. Rutherford, 238 Iowa 1321, 1328, 30 N.W.2d 141, 144, and citations. Here, as we have said, plaintiff was afflicted with amnesia as a result of the wreck.

Plaintiff contends defendant could not be an eyewitness within the meaning of the rule above stated because he is the defendant and there are no other surviving eyewitnesses. He cites no authority that supports the contention. We held to the contrary in Smith v. Darling & Co., supra, where defendant Sperfslage was the sole surviving eyewitness.

Plaintiff also argues defendant is not an eyewitness within the meaning of the no eyewitness rule because it is said he did not observe plaintiff's conduct during the material moments before the collision. Defendant testified he saw plaintiff's car in front of him only an instant before the impact, 'just like it dropped out of the sky in front of me.' We are inclined to accept plaintiff's argument, as we think the trial court did, that defendant's opportunity to observe plaintiff's conduct before the collision was so extremely limited that he was not an eyewitness, as that term is generally used in considering the no eyewitness rule. Davidson v. Vast, 233 Iowa 534, 541, 10 N.W.2d 12, 17, and citations; Hayes v. Stunkard, 233 Iowa 582, 589, 10 N.W.2d 19, 22; Jensvold v. Chicago Great Western R. Co., 234 Iowa 627, 630, 12 N.W.2d 293, 295; Riedesel v. Koch, 241 Iowa 1313, 45 N.W.2d 225. See also Peterson v. Sheridan, 8 Cir., 115 F.2d 121.

However, it does not follow that freedom from contributory negligence was conclusively established. Mast v. Illinois Central R. Co., D.C.Iowa, 79 F.Supp. 149, 165, Judge Graven, affirmed 8 Cir., 176 F.2d 157, 165, says of the inference of due care arising from the no eyewitness rule, 'it is not in...