Slabaugh v. Eldon Miller, Inc.

Decision Date11 November 1952
Docket NumberNo. 48086,48086
PartiesSLABAUGH et al. v. ELDON MILLER, Inc.
CourtIowa Supreme Court

John D. Randall, of Cedar Rapids, and Hamilton, Cahill & Bartley, of Iowa City, for appellant.

D. C. Nolan, of Iowa City, and T. Reagan Adams, of Wellman, for appellees.

THOMPSON, Justice.

On July 3, 1950, Isaac D. Yoder, then 19 years of age, was driving a Chevrolet truck in a northerly direction on U. S. Highway 218 between Iowa City and Cedar Rapids. The action herein, so far as Yoder is concerned, is prosecuted in the name of his guardian.

The truck was owned by the other plaintiff, Simon Mullett. Yoder was an employed and was engaged in Mullett's business. He was accompanied by Richard Gingerich, then 15 years of age, who was not an employee of Mullett.

At a point roughly one-half way between Iowa City and Cedar Rapids, and about one and one-half miles southeast of the village of Shueyville, a semi-trailer truck owned by the defendant and driven by one Dale Halter was proceeding southeasterly on the same highway. The Miller truck was a gasoline transport weighing about 23,000 pounds. As the two trucks met there was a collision, evidently between the front left-hand corner of the plaintiff's truck and a point on the defendant's vehicle somewhere back of the front wheels. In other words, the front of the defendant's truck had cleared, but there was a 'side-swiping' between the two vehicles as above described.

The plaintiff Yoder filed his petition claiming for personal injuries, and Mullett filed a separate petition asking recovery for the total loss of his truck, less $175 salvage obtained for it as junk. The two petitions were tried in one action, resulting in verdict for both plaintiffs.

The defendant assigns four errors as grounds for reversal. Three of them--Nos. 1, 2, and 4 apply to the cases of both plaintiffs; No. 3 dealing with the question of damages to the truck, to the claim of Mullett only. We shall consider them in order, with further statement of facts as they apply to each assignment.

I. The first assigned error goes to the failure of the court to direct a verdict for defendant because, it is said, there was no proven negligence of defendant's driver, no competent evidence that any negligence of defendant was the proximate cause of the collision, and that contributory negligence of the plaintiff driver appears as a matter of law. In argument defendant seeks to sustain these allegations by the so-called 'physical facts' rule. It is urged that the testimony offered by the plaintiffs is so strongly in conflict with, and so contradicted by the physical facts shown in evidence, that it cannot be true, and the court should have so held. The plaintiff driver, Yoder, and his companion, Gingerich, testified that defendant's truck, just before and at the time of the collision, was considerably over the center line of the pavement and upon its left-hand side of the roadway; that Yoder drove his truck as far to the right as he could go, there being a guard rail on his right-hand which prevented him getting his vehicle entirely off the pavement; and that the accident was occasioned by this negligence of Halter, who drove defendant's truck. As against this there is the testimony of Halter, who placed plaintiff's truck on the left or 'wrong' side of the road; some evidence as to 'gouge' marks on the paving leading from a point on the west, or left side as to plaintiff's vehicle, to the rear of plaintiff's truck as it stood immediately after the accident; and pictures of the two vehicles showing their location when they came to rest.

It is not contended, of course, that Halter's testimony in itself would be sufficient to require a peremptory verdict by direction of the court. The pictures show defendant's truck off the highway to its right, with the plaintiff's Chevrolet largely, if not altogether, upon its right side of the road, standing somewhat across the pavement with the front end about on, or possibly a trifle across, the middle line. The marks on the roadway are somewhat persuasive, but we think not sufficiently so to require an application of the rule contended for by defendant. The question before us is not whether we would have decided the facts as the jury did. It is common knowledge that the trucks which so much occupy our highways are so wide there is little if any over-plus of space left on the side of an 18 foot pavement, such as the one here, on which they are traveling. When two trucks meet on such a road there is a very slight margin for error. How motor vhicles will rebound after a collision is something no one can definitely say. A car, or truck, which is clearly upon the left-hand side may be driven back upon its own proper part of the highway by the force of the collision, and conversely the one which is struck while lawfully in its own lane may rebound across the pavement to the left side. Granted that there is room for argument that this is unlikely, and that some weight may be attached to the positions of the vehicles as they come to a stop after colliding, we think whatever that weight may be is ordinarily a question for the jury.

Much the same comment may be made as to the marks on the paving. Often there are skid marks which seem to indicate the true situation; here it is said there were marks of a scratching or gouging. We are of the opinion it would be a dangerous precedent to say these could so overbear direct opposing testimony of witnesses that the court should say they must perforce be taken as true. It should be noted there had been some rain on the morning of the collision, which took place about 9:15 to 9:30 a. m. Other cars had passed the point of the accident before the witnesses who testified to the marks saw them, and the pavement was not otherwise entirely clean. The marks are persuasive, but not conclusive. The 'physical facts' rule is to be applied sparingly, and the showing must be quite conclusive. Such is not the situation here.

II. The second error assigned is that the court submitted plaintiffs' specification of negligence No. 2, which alleged defendant's truck immediately prior to and at the time of the collision was being driven at a high and excessive rate of speed under the circumstances and conditions then existing, when there was no evidence to support this allegation. This is the ground alleged in the exceptions to instructions, to which, of course, defendant is limited on this appeal. He argues, in addition to the claim of lack of supporting evidence, that the court should not have adopted the plaintiffs' language 'high and excessive,' because it tended to give the impression that the court itself believed this to be the fact. It is also argued that speed could not have been the proximate cause of the collision. Neither of these two latter contentions was made by the exceptions to the instructions, and under well-known rules cannot be considered. Rules of Civil Procedure, rule 196, 58 I.C.A. It is true that in the motion to direct it was alleged there was no competent evidence in the record to prove that any negligence of the defendant was the proximate cause of the damage. But the assignment of error which we are considering here does not raise the point of the motion to direct, but only the alleged mistake of the court in submitting speed in its instructions. In any event, the issue of proximate cause was properly submitted.

We think the evidence of undue speed on the part of the defendant is sufficient to support the submission of the issue. The plaintiff Yoder said, as a witness:

'I was driving about forty miles per hour and Miller's truck was probably going as fast as I was.'

The witness Gingerich testified:

'It looked like he (the Miller truck) was going pretty fast.'

In McLaughlin v. Griffin, 155 Iowa 302, 305, 135 N.W. 1107, 1108, we said:

'Another witness, over objections, was permitted to testify that the automobile was going pretty fast. This is said to have been a conclusion of the witness, who had no expert knowledge.

Such objections have heretofore been held untenable.'

In Payne v. Waterloo, Cedar Falls & Northern Railway Co., 153 Iowa 445, 454, 133 N.W. 781, 784, is this language:

'It is not necessary that a witness should be an expert in order to testify as to rate of speed. * * * Nor is it necessary that a witness should state his opinion in miles per hour. The opinion of a witness in such a case is a mere approximately in any event.'

The size and weight of defendant's truck, and the condition of the pavement are material here. There was sufficient evidence to justify the submission of the issue of speed.

III. The third error assigned by defendant goes only to the petition of Simon Mullett. The assignment is thus stated:

'The error of the court in overruling the motion of the defendant made at the close of plaintiffs' case wherein the defendant moved to strike all evidence on the part of the plaintiff with respect to the alleged damage because of total loss of his vehicle for the reason that there was no foundation laid and no competent evidence introduced to sustain the burden of proving such damage and the error of the court in instructing the jury that the measure of the plaintiff Simon Mullett's recovery is the difference between the reasonable market value of his truck immediately before and immediately after the accident.'

At the close of plaintiff's evidence defendant moved to strike all evidence pertaining to the alleged damage because of loss of the Mullett truck 'for the reason that there is no competent evidence distinguished from the conclusion of the witness as to the fact that the cost of repairs for replacing the said vehicle was greater than the value of the vehicle prior to the accident, and that the plaintiff has therefore utterly failed to prove a proper measure of damages, and that if there be any evidence which tends to show such a loss the same is mere...

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