Rutherford v. Gilchrist
| Decision Date | 23 June 1934 |
| Docket Number | 42456 |
| Citation | 255 N.W. 516,218 Iowa 1169 |
| Parties | FRED W. RUTHERFORD, Plaintiff; v. J. H. GILCHRIST, Defendant, Appellant MARY RUTHERFORD, Administratrix, Substituted Plaintiff, Appellee, |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 13, 1934.
Appeal from Story District Court.--SHERWOOD A. CLOCK, Judge.
An action for damages by reason of a collision between an automobile in which plaintiff was a passenger and a truck upon a highway. The opinion states the facts. There was a verdict for the plaintiff, and defendant appeals.
Reversed.
Nichol & Nichol, for appellant.
Lee Steinberg & Walsh, McCoy & McCoy, and Welty, Soper & Welty for appellee.
This action was originally commenced in the name of Fred W. Rutherford as plaintiff. Subsequently Rutherford died from causes other than the injury received in the accident here involved, and Mary Rutherford, administratrix of his estate, was substituted as plaintiff. In the following discussion we will refer to Fred W. Rutherford as the plaintiff.
The incident out of which this controversy arises occurred on the Lincoln Highway about four miles west of Ames, Iowa, on the 27th day of March, 1931. A short time before the accident in question the course of the Lincoln Highway had been changed at the point of the collision and a new grade and pavement constructed. Because of this fact, the shoulders of the grade were unsettled and soft. On the afternoon of the day of the accident, a truck belonging to the defendant-appellant loaded with coal slipped off the pavement and became stalled. The defendant sent additional trucks which were unable to pull the stalled truck onto the pavement, and a part of the coal was unloaded into another truck. During these proceedings a truck belonging to one Roth which had been stopped behind the coal truck became stalled, and, after the coal truck was gotten upon the pavement, another one of the defendant's trucks backed down the pavement behind the stalled truck of Roth's with the view of giving him a start from the rear by a push. In attempting to do this, defendant's truck was stopped diagonally across the pavement with its rear end extending slightly over the black line in the center of the pavement. Another car approached from the opposite direction and pulled partly off of the pavement and also became stalled. With this situation existing, the plaintiff-appellee, Fred Rutherford, riding as a guest with his brother in a Ford coupe traveling east, collided with the truck of the defendant, Gilchrist, which was assisting to place the Roth truck back on the pavement. There is a sharp conflict in the evidence as to the time of day the collision occurred. The plaintiff contends that it was about 7:30 p.m., and the defendant and many other witnesses testified that it was between 5 and 5:30 p.m. There were no lights displayed upon the defendant's truck. It was a blustery March day, blowing and snowing, and the pavement was in a slippery condition caused by the rain and snow and sleet. The plaintiff claims that it was dark and he could see nothing ahead without his lights on, and that they were only traveling 25 or 30 miles an hour, and that with the lights on he could only see 50 to 100 feet ahead of his car. Several witnesses testified that they saw the car in which plaintiff was riding coming down the pavement, which had a slight grade, for 300 or 400 feet away from the place of the accident; that it was coming fast and swerving from one side of the pavement to the other. Roth, who was in his stalled truck, and Griffith, who was the defendant's foreman, saw the car in which plaintiff was riding approaching, as we have indicated, and both ran to the side of the road off from the pavement to save themselves from injury. The plaintiff testified that the lights on the car in which he was riding were burning, as were also the lights upon the stalled car on the opposite side of the road from the stalled truck. All of the witnesses other than the plaintiff and his brother testified that it was not dark, and that they could plainly see the plaintiff's car approaching 300 to 400 feet distant. The driver of the car in which plaintiff was riding was unable to stop it and came into collision with the truck of the defendant, which, as we have indicated, was at that time diagonally across the pavement with its rear end slightly over the black line, and the plaintiff received a broken leg and other injuries. The case was submitted to a jury, and a verdict was returned for the plaintiff in the sum of $ 2,750. The defendant's motion for a new trial was overruled, and the defendant appeals.
Several errors are assigned by the defendant, and the plaintiff contends that the assignments of error do not conform to rule 30, but we are of the opinion that the assignments do conform to that rule, and we will consider some of them.
The appellant contends that the court erred in overruling defendant's motion for a new trial on the ground that the record shows affirmatively that plaintiff was guilty of contributory negligence barring his recovery, and that the court also erred in overruling the motion upon the ground that the verdict was excessive. As the case must be reversed upon other assigned errors, we will not consider or comment upon these alleged errors.
The appellant also complains of the trial court's failure to direct a verdict for the defendant on the defendant's motion based upon the ground that no negligence upon the part of the defendant was shown. In view of what we have said above, we will not comment upon this assigned error.
The appellant complains and assigns as error the ruling of the court in permitting evidence to be introduced to the effect that the defendant was carrying liability insurance. Such evidence was introduced over the objection of the defendant, and a motion to strike the same was overruled; and a motion to discharge the jury and continue the case was also overruled. The appellant assigns these rulings as error, and also contends that the court erred in refusing to grant the defendant a new trial based upon misconduct of appellee's counsel in injecting the insurance feature into the case by the testimony of a witness, Clyde Rutherford. The testimony pertinent to the determination of this question is as follows:
At the close of the testimony this matter was again brought to the attention of the court by the defendant's request to the court to dismiss the jury and continue the case over the term, because of the prejudicial and extraneous matters brought to the attention of the jury by reason of the foregoing testimony. It was also incorporated in defendant's motion for a new trial. The appellee claims that a part of the conversation detailed above was material and relevant; that the court should not have excluded the same because of the reference therein to the insurance feature. We are unable to agree with the appellee's contention at this point. There is absolutely nothing in the conversation detailed which can in any way be...
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