Shinofield v. Curtis

Citation50 A.L.R.2d 964,66 N.W.2d 465,245 Iowa 1352
Decision Date19 October 1954
Docket NumberNo. 48565,48565
Parties, 50 A.L.R.2d 964 Anna May SHINOFIELD, Administratrix of the Estate of Teresa K. Redman, Deceased, Appellant, v. Jess CURITS, Appellee.
CourtUnited States State Supreme Court of Iowa

Mason & Stone, Mason City, for appellant.

Swift & Swift, Manchester, for appellee.

GARFIELD, Chief Justice.

This is a law action in two counts by an administratrix to recover for a woman's death from injuries sustained shortly after she alighted from defendant's truck. The first count seeks recovery on the theory of res ipsa loquitur, the second alleges specific acts of negligence. At the close of the evidence there was a directed verdict for defendant on the ground the evidence was insufficient for recovery on either count. From judgment thereon plaintiff has appealed.

On the night of April 4, 1952, decedent, a widow, age 58, rode as a gratuitous guest in defendant's truck from Lamont to a hotel in Manchester where she resided. About one a. m. she alighted from the truck when defendant stopped it facing west at the southwest corner of the hotel. The truck then turned the corner to the north in front of the hotel and stopped for a stop sign. It moved about 24 feet after decedent alighted. Defendant then looked back, did not see decedent on the sidewalk adjoining the hotel and got out of the truck to see what had happened to her. He found her lying seriously injured at the edge of the pavement, her head against the curb, her feet near the west edge of four steps leading from the paved street to the sidewalk. The lowest step consists of the curb at the side of the pavement. The body was seven or eight feet behind the right rear of the truck.

Decedent died within a matter of minutes. An autopsy was performed 12 hours later. The coroner expressed the opinion death was caused by shock and hemorrhage from crushing injuries to the chest and abdomen from dual wheels of a vehicle. Other testimony corroborates this. There were marks across decedent's face about an inch wide and a quarter inch apart which compared with the tread on the tires of the dual rear wheels of defendant's truck. Similar marks were on her chest. No other vehicle was near the scene of the tragedy at the time. We will later refer to other testimony.

I. The first matter argued is defendant's contention that at the time of her injury decedent was a gratuitous guest of defendant within the meaning of section 321.494, Codes, 1950, 1954, I.C.A. Defendant says he is therefore not liable because he was not under the influence of liquor or guilty of reckless operation of his truck. Under section 321.494 there is no liability for mere negligence to a gratuitous guest 'riding in said motor vehicle'.

We are agreed the relation of guest and host between decedent and defendant ended before decedent was injured and section 321.494 affords no defense. It is without dispute that defendant took decedent to her destination, she alighted safely from the truck, said 'Goodnight' and closed the door of the truck. Defendant testifies he then 'paused a moment, I suppose maybe a few seconds,' and started up. By no stretch of imagination can it be said decedent was riding in the truck when she was injured.

Our conclusion finds support from Puckett v. Pailthorpe, 207 Iowa 613, 617, 223 N.W. 254, 256 ('Then if such 'guest or person' is not 'riding,' the statute * * * has no application.'); Samuelson v. Sherrill, 225 Iowa 421, 426, 280 N.W. 596; Smith v. Pope, 53 Cal.App.2d 43, 127 P.2d 292; Brown v Arnold, 303 Mich. 616, 6 N.W.2d 914; Eshelman v. Wilson, 83 Ohio App. 395, 80 N.E.2d 803; Stewart v. McGarvey, 348 Pa. 221, 34 A.2d 901, 902 ('When Twentier's passengers alighted at their destination * * * the relation of guest passenger terminated * * *.'); 60 C.J.S., Motor Vehicles, § 399(5)d.

II. We think there is sufficient evidence decedent was fatally injured by defendant's negligence so plaintiff's Count II should have been submitted to the jury. Of course the testimony must be considered in the light most favorable to plaintiff. Her case rests largely on circumstantial evidence. We are committed to the rule that in such a case the evidence must be such as to make plaintiff's theory of causation reasonably probable, not merely possible, and more probable than any other theory based on such evidence. It is not necessary that the testimony be so clear as to exclude every other possible theory. Smith v. Darling & Co., 244 Iowa 133, 136, 56 N.W.2d 47, 49, and citations; Dougherty v. Sioux City, 245 Iowa ----, 66 N.W.2d 275, and citations.

There is clearly sufficient evidence the right rear dual wheels of defendant's truck ran over decedent's head and chest and crushed her. The jury could correctly find defendant was negligent in failing to keep a proper lookout for decedent and in moving his truck around the corner after decedent alighted therefrom without waiting for her to reach the sidewalk or other safe place. Defendant admits he made no attempt to look for decedent after she closed the door to the cab of his truck until he looked back after he stopped for the stop sign. It was then too late. Defendant also testifies, as we have indicated, he paused only a moment, 'maybe a few seconds' after decedent alighted, before starting the truck.

Some further facts should be mentioned here. The sidewalk adjoining the corner of the hotel is about 2 1/2 feet above the paved street. Except for the steps before mentioned only a perpendicular concrete surface at the edge of the sidewalk separates it from the pavement. Defendant was familiar with existing conditions. He intended to make a right turn at the corner. His truck was 23 or 24 feet long. The finding is warranted he knew or should have known that when he turned the corner the space where decedent alighted between the truck and the elevated sidewalk would get smaller.

Defendant knew decedent was very heavy (she weighed 210 pounds) and not agile on her feet. The bottom step leading to the sidewalk is 10 inches above the paved street. It was difficult for decedent to alight from the truck. The floor of the cab (over the engine) was about 35 inches above the street. It was necessary for decedent first to step on the battery box and then onto the running board 18 inches above the pavement. She remarked to defendant that his truck was different from any she had ridden in before. Decedent may reasonably have paused at least a few seconds after alighting from the cab before ascending the steps to the sidewalk. The box or bed of the truck protruded out from the cab not less than 12 to 14 inches on each side.

It was defendant's duty to exercise ordinary care not only to keep a lookout but to afford decedent a reasonable opportunity to reach a safe place before starting his truck. Reasonable minds could find there was a breach of this duty. No Iowa decision directly in point on the facts has come to our attention. On principle, however, the case on its facts resembles Devore v. Schaffer, 245 Iowa ----, 65 N.W.2d 553, 557; Cable v. Fullerton Lbr. Co., 242 Iowa 1076, 49 N.W.2d 530; Kaffenberger v. Holle, 237 Iowa 542, 547, 22 N.W.2d 804, 808. ('The exercise of reasonable care under the circumstances required defendant to refrain from conduct reasonably likely to cause injury to others.')

Devore v. Schaffer, supra [245 Iowa ----, 65 N.W.2d 557], says of a truck operator's duty to keep a lookout before turning his truck: '* * * it could only mean care to discover whether plaintiff was in a place of safety from possible injury by the contemplated movement of the truck and trailer. * * * He must have known plaintiff would be in a place of danger when the vehicle made the turn.'

These decisions also support our conclusion: Dungan v. Brandenberg, 72 Ariz. 47, 230 P.2d 518; Brown v. Arnold, supra, 303 Mich. 616, 6 N.W.2d 914; Anderson v. Ambroise, 174 Minn. 481, 219 N.W. 769; Williams v. Williams, 210 Wis. 304, 246 N.W. 322, 323.

This from Williams v. Williams, supra, is applicable here: '* * * a driver is negligent if in stopping his car for a guest to alight he does not give the guest reasonable opportunity to get clear of the car before starting it if under the circumstances starting it is likely to cause injury to the guest. Upon like reason is a host negligent if by reason of his manner of starting his car he is likely to cause injury to a guest who has just alighted and has not been given reasonable opportunity to get into a position of safety.'

4 Blashfield Cyc. Autom. Law and Practice, Perm. Ed., section 2341, page 164, contains about the same statement as the second sentence quoted above from Williams v. Williams.

III. We cannot accept defendant's argument in support of the directed verdict that a heart attack caused her death. There is testimony that at least four months or more before she died decedent suffered a heart attack. She said during the evening before her death her heart was not as good as it used to be and she had to be a little careful. The coroner testifies 'there was no evidence of a recent attack in the past month. * * * It would be possible she died from a heart attack although that would be, I guess, unusual.'

It is no more than a possibility that the cause of decedent's death was a heart attack. As we indicate in Division II hereof, for plaintiff to recover it is not necessary the evidence be so clear as to exclude every suggested or possible cause of death other than defendant's claimed negligence. Stickleman v. Synhorst, 243 Iowa 872, 877, 52 N.W.2d 504, 507, and citations; 61 C.J.S., Motor Vehicles, § 519. If a plaintiff were required to negative every possibility that would relieve a defendant from liability it would be practically impossible to make a case of negligence against a motor vehicle operator. Cable v. Fullerton Lbr. Co., supra, 242 Iowa 1076, 1082, 1083, 49 N.W.2d 530, 533, 534, and citations.

We cannot say as a matter of law the theory of defendant's...

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