Schneider v. Swaney Motor Car Co.

• Decision Date: 30 June 1965
• Docket Number: No. 51624,51624
• Citation: 257 Iowa 1177,136 N.W.2d 338
• Parties: A. James SCHNEIDER, Appellee, v. SWANEY MOTOR CAR CO., Appellee, and James Quick and Earle Fletcher, d/b/a Fletcher Motor Sales, Appellants.
• Court: Iowa Supreme Court

Page 338

136 N.W.2d 338

257 Iowa 1177

A. James SCHNEIDER, Appellee, v. SWANEY MOTOR CAR CO., Appellee and James Quick and Earle Fletcher, d/b/a Fletcher Motor Sales, Appellants.

No. 51624.

Supreme Court of Iowa.

June 30, 1965.

Alan Loth, Fort Dodge, for appellants.

Gerald L. Shaffer and Robert L. Ulstad, Fort Dodge, for plaintiff-appellee.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee Swaney Motor Car Co.

MOORE, Justice.

On Saturday morning February 4, 1961 the automobile of plaintiff, A. James Schneider, while stopped for a traffic light at or near the intersection of Central Avenue and Sixth Street in Fort Dodge was struck from the rear by a truck driven by defendant, James Quick. This is an action for the resulting damages. Plaintiff made Swaney Motor Car Company, an Iowa corporation, and Earle E. Fletcher defendants, claiming Quick was operating the truck with permission of each. Quick and Fletcher cross-petitioned against Swaney, claiming a right to indermnity. From judgment on verdict for plaintiff against them and denying indemnity Quick and Fletcher have appealed.

Defendant-appellants Quick and Fletcher on plaintiff's claim assign 43 errors. On their claim against Swaney for indemnity they assign 17 errors. They have not, however, argued each claimed error separately but grouped them in divisions. Each appellee has argued the assigned errors in divisions in so far as material to each. We shall so consider them.

On February 2, 1961 Fletcher, after some negotiation, made a wholesale purchase of six motor vehicles from Swaney for $3000. He signed an order which was accepted by Swaney which stated it comprised the entire agreement affecting the order and that no other agreement or understanding of any nature had been made or entered into. Fletcher testified Joel Johnson, Swaney's general manager, represented the vehicles to be 'roadworthy'. Johnson denied making such a statement or that the vehicles would be filled with gas or readied as claimed by Fletcher. He testified he had no knowledge of how Fletcher intended to move the vehicles. Johnson and other used car dealers testified a wholesale sale of used cars is a cash transaction on an 'as is', 'where is' basis but the purchaser has the right to inspect or drive the vehicle before buying. Witness Don Carney testified: 'If the buyer takes it, it is his 'baby'. If it falls apart when he gets down the street, it is still the buyer's.'

Quick, a Des Moines policeman, and others including Fletcher's son, Charles, were employed by Fletcher to go to Fort Dodge and drive the six vehicles to Des Monies. Upon arrival at the Swaney used car lot, Quick was assigned to drive a 1953 Ford truck (acquired by Swaney January 13, 1961) which was one of the purchased vehicles. He had never seen the vehicle before. A battery charged was being used on it when the party arrived. Quick testified one of Swaney's men started the truck, told him it was ready to drive and where to go across town to get gas.

Quick testified he, without making any test of the vehicle, drove the truck west over the lot to Third Street, then a few feet north to Central Ave. and then east on Central. He did not stop before entering the public street from the private lot. He said he did not know the law required him to do so. As he drove eastward on Central Avenue he went around the public square between Fourth and Fifth streets and finally turned east again when he said he observed plaintiff's vehicle stopped for the red light at Sixth. There was a light cover of snow or slush on the streets. After traveling some distance on Central at about 15 miles per hour toward plaintiffhs stopped vehicle, Quick testified he for the first time applied the truck brakes but they did not respond. He was unable to estimate his distance from plaintiff when he first applied the brakes. After pumping them and throwing the clutch in and out to no avail he attempted to turn left to avoid striking plaintiff's car and thought he had done so until the right end of the truck's front bumper struck the left rear corner of the car. The heavy truck bumper extended out beyond the fender some distance.

Quick testified he did not believe the car was moved by the collision. Plaintiff said he was moved ahead several feet, the truck hit 'real hard' like he was 'hit with a crowbar'.

After the accident Charles Fletcher, who had followed the truck, told plaintiff Fletcher would take care of the damages. Charles then drove the truck back to Swaney's lot where one of Swaney's men inspected the master brake cylinder and found it needed brake fluid which was put in. Thereafter the brakes worked and the truck was driven to Des Monies.

Quick testified the man who opened the brake cylinder said 'there's cobwebs in there'. Charles Fletcher testified the man said there wasn't any fluid in the cylinder. He said nothing of any comment about cobwebs. With such a record appellants argue the cobwebs existed and that the sole cause of the accident was lack of brakes. The trial court did not agree with appellants' contention but submitted to the jury the pleaded specifications of unreasonable speed under the circumstances, lookout, control and inadequate brakes.

I. Several of appellants' assigned errors involve their contention that the question of proper lookout by Quick should not have been submitted to the jury.

In considering this contention as well as appellants' claim that lack of proper control should not have been submitted to the jury certain general rules must be kept in mind.

When the court instructs the jury upon a certain question there must be some evidence upon which to base such instruction. Wilson v. Kouri, 255 Iowa 348, 355, 122 N.W.2d 300, 304; Clubb v. Osborn, Iowa, 130 N.W.2d 648, 652. And it is reversible error to submit an issue having no support in the record. Borough v. Minneapolis & St. L. R. Co., 191 Iowa 1216, 1223, 184 N.W. 320, 323; Clubb v. Osborn, supra, and citations.

In considerating whether or not there is evidentiary support for an instruction we give the evidence the most favorable construction it will reasonably bear. Clubb v. Osborn, supra.

Even when the facts are not in dispute or contradicted, if reasonable minds might draw different inferences from them, a jury question is engendered. Citation of authority is unnecessary. See Rule of Civil Procedure 344(f) 17, 58 I.C.A. This proposition is recognized in Brinegar v. Green (Iowa), 117 F.2d 316, 319, where the court states: 'The determination of the existence of negligence where the evidence is conflicting or the undisputed facts are such that fair-minded men may draw different conclusions from them is a question of fact for the jury and not one of law for the court.'

Driving an automobile into another in plain sight is evidence of negligence. Harris v. Clark, 251 Iowa 807, 809, 103 N.W.2d 215, 217. It is evidence of improper lookout, lack of control, speed and other specific acts of negligence, including driving with faulty brakes. Ruud v. Grimm, 252 Iowa 1266, 1274, 110 N.W.2d 321, 325. The evidence in each case must be carefully considered as to which acts or omissions caused the collision. It is not for the trial court to put his finger on the one and only thing that brought about the accident and brand it with unerring accuracy and scientific precision as the one and only proximate cause. Usually this is for the jury. Pazen v. Des Moines Transportation Co., 223 Iowa 23, 28, 272 N.W. 126, 130.

Proper lookout means more than merely to look and see an object. It implies being watchful of the movements of the driver's own vehicle as well as the movements of things seen or seeable. It involves care, watchfulness and attention of the ordinarily prudent person under the circumstances. Pazen v. Des Moines Transportation Co., supra, 223 Iowa 23, 30, 272 N.W. 126, 131; Olson v. Truax, 250 Iowa 1040, 1048, 97 N.W.2d 900, 905; Kuehn v. Jenkins, 251 Iowa 718, 725, 100 N.W.2d 610, 615.

Quick testified that after he observed plaintiff's stopped car he did nothing until he had continued some distance. He did not testify he continued to observe plaintiff's vehicle. His testimony includes, 'When I found I was too close to him to come to a complete stop, I steered to the left.' Also 'Just before we hit, I didn't know they were going to. I thought I had missed him.'

We conclude reasonable minds might draw different inferences from the facts in this case. The jury could have found Quick knew or should have known about the brakes soon after he started driving the truck. A jury question was engendered as to whether Quick kept a proper lookout.

II. A number of appellants' assigned errors claim lack of control should not have been submitted as a specification of negligence.

A motor vehicle is 'under control' if it is moving at such a rate of speed and the driver has the machanism and power under such control that it can be brought to a stop with a reasonable degree of celerity. Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 196, 61 N.W.2d 696, 698, and citations. Of course the existing conditions must be considered. Johnson v. Kinnan, 195 Iowa 720, 723, 192 N.W. 863, 865, states: 'Manifestly, the ability to turn the automobile and to expeditiously change its course to avoid collision or injury may have something to do with the 'control' of an automobile. The present ability to increase or decrease the speed at which a car is moving and likewise the ability to divert or change its course may be properly involved in the question of control.' See also Lynes v. Schmolt, 241 Iowa 1303, 1306, 45 N.W.2d 221, 222; Ehrhardt v. Ruan, supra.

Under the facts here the question of whether Quick had the truck under proper control was for the jury.

III. Plaintiff pleaded his claim against Quick in two divisions. One alleged specific charges of negligence. The other was a general charge of negligence under the res ipsa loquitur doctrine. The trial...