Rusch v. Hoffman
| Decision Date | 15 June 1937 |
| Docket Number | 43817. |
| Citation | 274 N.W. 96,223 Iowa 895 |
| Parties | RUSCH v. HOFFMAN et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Scott County; D. V. Jackson, Judge.
An action to recover damages for the death of Lena Rusch alleged to have been caused by the negligent operation of an automobile driven by the defendant Lloyd H. Hoffman, with the knowledge and consent of his father, Henry G. Hoffman, owner of the car. Verdict for the defendants. Plaintiff appeals.
Reversed and remanded for new trial.
Carl H. Lambach and Howard E. Kopf, both of Davenport, for appellant.
C. C Putnam, of Des Moines, and Smith, Swift & Maloney and Charles E. Wittenmeyer, all of Davenport, for appellees.
This is an action to recover damages for the death of Lena Rusch alleged to have been caused by the negligent operation of a motor vehicle driven by the defendant Lloyd H. Hoffman, with the knowledge and consent of the defendant Henry G. Hoffman the owner and his father.
Lena Rusch and her sister Millie Rusch resided on a small farm carrying on farming operations, near Davenport, Scott county Iowa. Lena was fifty-two years of age and her sister was fifty-four at the time of the accident. On the 23d of February, 1935, while they were going home from Davenport, in a car owned by their brother, Oscar P. Rusch, and being driven by Millie Rusch with his knowledge and consent, while traveling north on Brady road in the city of Davenport, at about 8 o'clock p. m., and when opposite what is known as the " Battery," the headquarters of a battery of the Iowa National Guard, and within a suburban district, they collided with a car owned by the defendant Henry G. Hoffman, being driven by his son and the defendant Lloyd H. Hoffman, with the consent of the owner. Lena Rusch was killed. An administrator was appointed for her estate, and said administrator brought suit to recover damages by reason of the death of Lena. This action was tried in the district court of Scott county, Iowa, and resulted in a verdict and judgment for the defendant, from which an appeal has been taken to this court.
The plaintiff, in his petition, set forth ten specifications of negligence, which it is not necessary to repeat here. It was averred in the petition also that at the time of her death Lena Rusch was fifty-two years of age, in good health, able to earn a livelihood as an operator of a farm, and capable of earning $1,500 a year, and that her death was caused by the negligence of the defendant Hoffman, owner of the car, and Lloyd H. Hoffman, who was driving same with the consent of the owner, and the administrator asked damages in the sum of $15,000. The defendant denied generally the allegations of the plaintiff.
The evidence shows without question that there was a collision between the two cars at about the point alleged in the petition, and that as a result thereof Lena Rusch came to her death.
At the close of all the evidence the court, on motion of the defendant, withdrew from the jury the claims of the plaintiff based on specifications of negligence Nos. 1, 2, 3, 4, and 6, leaving only the specifications of negligence Nos. 5, 7, 8, 9, and 10, which were:
5. In failing to keep said automobile upon the westerly or their right-hand side of the street.
7. In failing to use ordinary care in the operation of said automobile so as to avoid injury to the deceased.
8. In driving said automobile upon the streets carelessly and heedlessly in disregard of the rights and safety of others.
9. In operating said automobile without care or concern for consequences.
10. In operating said automobile at a speed in excess of that provided by law and in violation of Ordinance No. 104 of the city of Davenport, Iowa, article 8, section 56.
The case was then submitted to the jury under the instructions of the court. The jury found for the defendants; the plaintiff filed exceptions to the instructions, and motion for new trial, in which he properly objected to instructions 9, 10, 13, 14, 15, and 16.
This accident took place within the corporate limits of the city of Davenport. There seems to be some discussion as to what statute should apply. The discussion ranges around sections 5019, 5020, and 5030. Section 5019 provides that the operators of motor vehicles in cities and towns shall at all times travel on the right-hand side of the center of the street. Section 5020 provides that persons on horse back, or in vehicles, including motor vehicles, meeting each other on the public highway, shall give one-half of the traveled way thereof by turning to the right. Section 5030 provides for municipal speed districts, and sets a limitation as to speed in four classified districts, the last of which is " suburban district." So section 5030 only applies to speed, and leaves section 5019 as the controlling section as to paths automobiles should take, that is, on the right-hand side of the center of the road.
There was evidence in this case that in the center of the street upon which the two cars were traveling there was a painted line.
Objections are made to different instructions of the court, but in our opinion the most serious question is as to the giving of instruction 14 of the court. In this instruction the court properly told the jury that evidence may be either direct or circumstantial, and defined both kinds of evidence, saying, " The two kinds of evidence are often, but not always, of equal value, and a litigant may, if he chooses, or where there is no direct evidence, rely wholly upon circumstantial evidence for proof of any fact essential to his case." The instruction then proceeds to state to the jury that the only evidence introduced on behalf of the plaintiff, as to whether the car of decedent was upon the right-hand side of the street at the time of the accident, was the testimony of the driver of the Rusch car and the witness Dungan. The instruction then stated that in determining whether the circumstances relied upon furnish any evidence of the conclusion sought to be drawn therefrom, the rule is that the facts which the circumstantial evidence tends to establish must be of such a nature and so related to each other that such conclusion is the only one that can fairly or reasonably be so drawn; that it was not sufficient to so find merely because these circumstances are consistent with the conclusion that her car was on the east half of the highway, if the circumstances are equally consistent with the conclusion that she was on, or partly on, the west half of the highway at the time of the accident.
In the latter portion of the instruction we feel there was error. There was direct evidence by the driver of the Rusch car. Millie Rusch, the driver of the car, testified in regard to the collision that she had not at any time driven left of the center line on the highway, and says: ...
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