Slatinsky v. Bailey

• Decision Date: 16 April 1964
• Docket Number: No. 17505.,17505.
• Citation: 330 F.2d 136
• Parties: Mary Catherine SLATINSKY, Executrix of the Estate of John S. Slatinsky, Deceased, Appellant, v. Harold F. BAILEY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

330 F.2d 136 (1964)

Mary Catherine SLATINSKY, Executrix of the Estate of John S. Slatinsky, Deceased, Appellant, v. Harold F. BAILEY, Appellee.

No. 17505.

United States Court of Appeals Eighth Circuit.

April 16, 1964.

Emmet Tinley, Council Bluffs, Iowa, made argument and filed brief with Robert M. Stuart, of Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, Iowa, and George B. Boland, of Wear, Boland, Mullin & Walsh, Omaha, Neb., for appellant.

Philip J. Willson, Council Bluffs, Iowa, made argument for the appellee and Raymond A. Smith, Council Bluffs, Iowa, was with him on the brief.

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by Mary Catherine Slatinsky, Executrix of the Estate of John S. Slatinsky, deceased, from judgment entered against her upon a jury verdict in a diversity action she brought against Harold F. Bailey for the wrongful death of John S. Slatinsky in an automobile accident. The accident occurred on Iowa primary Highway 92 a short distance east of Council Bluffs about 7 a. m. on July 5, 1962. The paved highway at the point of collision consists of two main lanes, each twelve feet wide, and two passing lanes or creeper lanes, each ten feet wide. The west bound creeper lane commences to narrow at the point of the accident and terminates some distance to the west. The day was clear, the road was straight and dry, and approaching cars could see each other for a considerable distance.

Immediately prior to the collision, Mr. Slatinsky was driving his car in an easterly direction on the highway while defendant's car, driven by his son, was traveling in a westerly direction. The automobiles collided; the drivers of both cars died as a result of injuries received.

Dispute exists as to which automobile was on the wrong side of the road at the time of the collision. The jury found for the defendant. Judgment was entered upon such verdict. This timely appeal followed.

Plaintiff urges that she is entitled to a reversal for the following reasons:

I. The court erred in failing to submit her speed specification of negligence to the jury.

II. The court erred in overruling plaintiff's objections to the cross-examination of witness Radeke and in permitting defendant's counsel to play a tape recording of a prior statement made by such witness and in giving an impeachment instruction.

I.

The court submitted three specifications of negligence charged by the plaintiff to the jury, to wit, failure to keep a lookout, failure to control the automobile and failure to yield one-half the traveled portion of the highway. The court refused plaintiff's requested instruction submitting a pleaded speed specification to the jury, stating:

"The Court refuses to submit that, because the uncontradicted testimony in this record is that these vehicles were travelling in the neighborhood of 45 to 55 miles an hour. There is no speed limitation in this area. And there just is absolutely no ground for submitting speed as far as either side is concerned. And the matter of control is being submitted, which does somewhat cover this matter of driving a car and having it under control, and has some effect upon it. But I see no reason for submitting speed, because there is absolutely no evidence here that either vehicle was in either way driving at an excessive speed under the circumstances then and there existing."

We agree with the foregoing statement. Four disinterested witnesses in a car which had followed defendant's car for some five miles immediately prior to the collision fixed the maximum speed of defendant's car at 50 to 60 miles per hour. There is no direct testimony to the contrary.

As plaintiff states, the Iowa court has recognized that speed can be determined under appropriate circumstances by physical facts and courts are not bound to accept at face value estimates of speed. Such rule is particularly applicable with respect to estimates made by interested witnesses. See Hutchins v. La Barre, 242 Iowa 515, 47 N.W.2d 269, 275; Davidson v. Vast, 233 Iowa 534, 10 N.W.2d 12, 15.

In Davidson, defendant had placed his speed at 7½ miles per hour. In La Barre, the defendant fixed his speed at 10 to 20 miles per hour. In each of those cases the court found there was reason to believe from the physical facts and the nature of the damages that the speeds were substantially higher than estimated. In our present case, it is not unreasonable to believe that the damages here shown could be caused by vehicles approaching each other at a rate of speed approximately 60 miles per hour.

Iowa cases support plaintiff's contention that the 70 miles per hour speed limit operative with respect to the road here involved prescribes only a minimum standard of care and that conduct meeting such standard may under some circumstances be negligent. I.C.A. § 321.285 includes the provision that motor vehicles shall be driven "at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing."

In Hackman v. Beckwith, 245 Iowa 791, 64 N.W.2d 275, relied upon by the plaintiff, the court finds that the existence of a curve at the viaduct, the rise of the approach to the viaduct, the weight of the truck and other elements were entitled to consideration in determining whether the speed was excessive under the circumstances existing and that the court did not err in refusing to withdraw the speed specification from the jury.

In Law v. Hemmingsen, 249 Iowa 820, 89 N.W.2d 386, the court calls attention to a narrow 18-foot roadway, falling snow, darkness, icy pavement, obscured center line and edges, a truck 7 feet, 10 inches wide, a curve at the point of collision which was not banked, and other elements, and states:

"In view of the dangerous driving conditions referred to in Division III the jury could properly find defendant-driver was negligent in failing to reduce his speed at the time of the collision. Whether negligence in this respect or in the manner of lookout proximately caused the collision was also a jury question." 89 N.W.2d 386, 394.

No similar existing circumstances calling for a reduced speed are present here. The only circumstance plaintiff urges is that the west-bound creeper lane commences to terminate. There is no evidence of cars trying to pass nor is any convincing reason set out why the highway at the time and place of the accident was not suitable for normal country driving.

The Supreme Court of Iowa has frequently held that a specification of negligence which could not possibly be a proximate cause of the injury should not be submitted to the jury. Jacobsen v. Gamber, 249 Iowa 99, 86 N.W.2d 147, 152-153; Brewer v. Johnson, 247 Iowa 483, 72 N.W.2d 556, 558; Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696, 700.

As stated in Brewer v. Johnson, supra, "Negligence, in and of itself, is irrelevant in the absence of some causal connection with the injury."

It is apparent that this unfortunate accident was caused by one driver or the other being on the wrong side of the road. Each party contends his driver was on his right side of the road at the time of the collision. Neither party has attempted to offer any evidence of sudden emergency or legal excuse for being upon the wrong side of the road. Upon this record, there is no substantial evidence to support a finding that the speed of either vehicle played any part in causing the accident. The court committed no error in refusing to submit the speed specification. Moreover, the control instruction submitted to the jury was broad enough to give the plaintiff any benefit that she could hope to gain by the requested speed instruction. Plaintiff has failed to show any prejudice resulting from the court's refusal to give the requested speed instruction.

II.

Plaintiff asserts the court erred in overruling her objections to the use of a dictaphone tape in cross-examination of the plaintiff's witness Ronald R. Radeke. Radeke, who was driving an automobile following Slatinsky's automobile, initially testified at the trial that the said automobile prior to the collision was traveling in the main line of travel for east-bound traffic and was at all times on its side of the highway. Mr. Radeke had given a statement to a representative of the defendant on the day following the accident. Such statement was taken by dictaphone and later a typewritten transcript of the tape was made, which transcript was not signed or approved by the witness. In the course of the cross-examination the typewritten transcript was produced and shown to the witness. The following is illustrative of the cross-examination based on the transcript:

"`Question: You wouldn\'t know then whether the man was in his lane or out of his lane?\' `Answer: No, I wouldn\'t.\' Do you recall that answer?

"A. Recall it? No, I see it there. I see I have said it.

"Q. And is that a fact?

"A. I feel like he was in my lane.

"Q. And this question and this answer: `Question: Okay, you couldn\'t say he was in it and you couldn\'t say he was out of it, is that correct?\' `Answer: That\'s correct.\' Do you recall that question and that answer?

"A. I don\'t recall it. I see it there.

"Q. You don\'t recall making the answer?

"A. Well, I don\'t recall the exact things I said then."

Later Mr. Radeke was recalled for further cross-examination. His statement, which covers two separate tapes, was played to him in open court in the presence of the jury. Defendant's counsel as a basis for playing the tapes, stated:

"The witness yesterday was unable to recall whether or not he made some of the statements that were read to him. We felt that we were obligated to confront him with the recording that was taken so that he could check that against the transcript, and then we felt there was further obligation to lay a foundation and ask him if

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