Rursch v. Gee
| Decision Date | 17 December 1946 |
| Docket Number | 46904. |
| Citation | 25 N.W.2d 312,237 Iowa 1391 |
| Parties | RURSCH v. GEE. |
| Court | Iowa Supreme Court |
Jordan & Jordan, of Cedar Rapids, for appellant.
John D. Randall, of Cedar Rapids, for appellee.
The plaintiff, owner of a 1941 Ford truck, sued the defendant for damages to her truck sustained in a collision with defendant's truck, and for the damages she sustained by reason of her truck being withdrawn from service during the period it was being repaired. The defendant answered denying liability and cross-petitioned for damages to his truck and for damages he sustained by reason of his truck being withdrawn from service during the period it was being repaired.
The petition and cross-petition alleged negligence on the part of the operator of the other truck in failing to have his truck under control; in failing to yield one-half of the traveled way to the other vehicle; and in driving in such a manner as to cause the collision. In addition, the petition alleged negligence in the defendant's operator failing to keep a lookout and the cross-petition alleged negligence in plaintiff's operator failing to sound a horn at the place of the accident and in failing to operate plaintiff's truck at the time and place of the accident with due regard to the condition of the highway and the condition of the traffic thereon. Both pleadings alleged freedom of contributory negligence. The trial resulted in a verdict for plaintiff for $1073.63 and defendant appeals.
The record shows that plaintiff's truck was operated by her husband Marion Rursch, and defendant's truck was operated by Richard Carley. Both trucks were being operated in a gravel hauling project near Fairfax, Iowa. The following is Rursch's testimony:
He was driving west with a full load of gravel, on a gravel highway on the afternoon of December 21, 1944. The day was clear but the road was icy and the ground was covered with snow. It had thawed a little during mid-day but it was starting to freeze again. The road was straight and there was a Dodge truck traveling in the same direction about five or six hundred feet ahead of him. He saw the defendant's truck traveling toward him on the same highway when it was about half a mile away. He saw the defendant's truck go around a little bend in the road and noticed it skid a little and then straighten out and come down the highway toward him. He estimated the speed of defendant's truck at around fifty or fifty-five miles an hour and his own speed at about twenty miles an hour. He was as far over to the right as he could get when he undertook to pass defendant's on-coming truck and there was plenty of room for defendant's truck to pass but defendant's truck, as he stated, 'came right at me and hit the back end of my truck.' He ended up in the ditch along his right, or north side of the road but defendant's truck traveled on about 80 or 90 feet and stayed on the road.
Richard Carley, defendant's driver, was 17 years old at the time of the accident. The following is his version of the accident: He was returning to the quarry with defendant's empty truck when he first noticed the Dodge truck ahead of him. He could not see plaintiff's truck behind the Dodge for, as he stated, 'it was following the Dodge so close I couldn't see him on account of the snow that was on the ground that the Dodge was blowing up.' He knew there was a hump or bump in the road on the south side just east of the little culvert so he slowed up to let the Dodge go by. He was as far to the right as he could go but when plaintiff's truck struck this hump it threw the back end of his truck into the back end of defendant's truck. He went on into the ditch on the south side but he got back upon the road before he stopped. He estimated his speed at twenty-five or thirty miles an hour before he reached the place of the collision and not over twenty miles an hour at the time of the collision. He did not see plaintiff's truck because of the flying snow but the Dodge was going between forty and forty-five miles an hour and plaintiff's truck was ten or fifteen feet behind the Dodge.
The repair bills on the two trucks were the subject of a stipulation between the parties. Plaintiff testified that she owned the Ford truck and that her business was 'trucking'; that she ran two trucks with her husband driving one and she driving the other; that she had rented out a truck 'last fall'; that she had operated these trucks for a period of three years, and by virtue of her previous experience she was familiar with the value of loss of use of trucks on or about the date of the accident in the area where the accident occurred. Over defendant's objection on the ground that her testimony was 'incompetent, irrelevant and immaterial, and not a proper measure of damages,' she was allowed to state the value of such loss of use would be 'around $30 a day.' There was evidence showing she was without the use of her truck while it was being repaired for a period of 66 days.
Defendant's testimony was to the effect that the value of the loss of use of his truck (which was of about the same value as plaintiff's truck) in the area and at the time of the accident would be $20 a day.
I. Defendant assigns error in the court's ruling permitting plaintiff to testify as to the value of the loss of use of the truck. Defendant argues the ruling was error 'for the reason that the witness was not shown qualified to testify as to the value per day.' The objection to her testimony was not on the ground that she was not qualified. She owned the truck. She had rented out her truck before she was in the trucking business. Her evidence as to the value per day of the use of the truck was clearly competent under our pronouncement in Kohl v. Arp, Iowa, 17 N.W.2d 824.
II. Defendant submitted eleven requested instructions, all of which were refused and he assigns error in refusal of the court to give nine of the requested instructions. He also excepted to 10 of the 22 instructions given and now assigns error in the giving of instructions 1, 19, and 20. It would unduly lengthen this opinion were we to discuss all of the requested instructions and show that where they did correctly state a proper instruction the same was embodied in the instructions given. The instructions given were reciprocal and applicable to both parties in the case each had against the other. The requested instructions were in the main favorable only to defendant's action against plaintiff. We find no error in the refusal to give the instructions requested.
III. Instruction 19 was excepted to and the error asserted is that it permitted the jury to speculate and use their own experience in the place of evidence as to the reasonable cost and expense of making repairs. The instruction was as follows: ...
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