Smith v. Darling & Co.

• Decision Date: 15 December 1952
• Docket Number: No. 48210,48210
• Citation: 56 N.W.2d 47,244 Iowa 133
• Parties: SMITH v. DARLING & CO. et al.
• Court: Iowa Supreme Court

Page 47

56 N.W.2d 47

244 Iowa 133

SMITH v. DARLING & CO. et al.

No. 48210.

Supreme Court of Iowa.

Dec. 15, 1952.

C. W. Antes, West Union, and Geiser, Donohue & Wilkins, New Hampton, for appellant.

Harris, Van Metre & Buckmaster, Waterloo, and Alex Holmes, Strawberry Point, for appellees.

GARFIELD, Justice.

This is a law action to recover for death of plaintiff's decedent in a collision between a panel truck driven by him and a semitrailer owned by defendant Darling & Co. driven by defendant Sperfslage. The vehicles were traveling in opposite directions. After a jury verdict for plaintiff for $15,368, judgment was entered for defendants notwithstanding verdict on the grounds there was no evidence (1) the collision was caused by defendants' negligence or (2) decedent was free from contributory negligence, also (3) that it is pure speculation and conjecture as to how or where the collision occurred. Defendant had moved for directed verdict on such grounds at the close of the evidence. See rule 243(b), R.C.P., 58 I.C.A.

Plaintiff's appeal presents the familiar question of the sufficiency of the evidence of defendants' negligence and decedent's freedom from contributory negligence. Of course the burden of proof on both these issues rested on plaintiff. Under repeated decisions the evidence must be considered in the light most favorable to plaintiff.

Both decedent and defendant driver were alone. There were no other eyewitnesses. Decedent was killed in the collision. Plaintiff's case therefore rests wholly on circumstantial evidence. Under the rule to which we are firmly committed by many recent decisions the evidence must be such as to make plaintiff's theory of causation reasonably probable, not merely possible, and more probable than any other hypothesis based on such evidence. The evidence need not be so clear as to exclude every other possible theory. See Latham v. Des Moines Electric Light Co., 229 Iowa 1199, 1207, 296 N.W. 372, 375; Hayes v. Stunkard, 233 Iowa 582, 588, 10 N.W.2d 19, 22; Cable v. Fullerton Lumber Co., 242 Iowa 1076, 1082, 49 N.W.2d 530, 534; Roller v. Independent Silo Co., 242 Iowa 1277, 1285, 49 N.W.2d 838, 843; Stickleman v. Synhorst, 243 Iowa 872, 877, 52 N.W.2d 504, 507.

The collision occurred October 11, 1950, in daylight on a paved primary highway about four miles west of Strawberry Point near the east end of a bridge over a stream. The paving is 18 feet wide and it is about 18 feet between the concrete railings on each side of the bridge which is about 80 feet long. The bridge railings are about three feet high. Going east from the bridge the highway, which runs generally east and west, is substantially level and curves gradually (seven degrees) to the southeast. Going west from the bridge there is a more gradual curve (two degrees) to the southwest. Coming from the west toward the bridge there is a decline in elevation of 3.5 feet per 100 feet. Approaching the bridge from either side there is a clear view for about 1,400 feet. Weather conditions were perfect except that there was a strong northwest wind.

Plaintiff's decedent was coming from the east in a 1941 half-ton Chevrolet panel truck carrying tobacco, candy and other merchandise. The truck of defendant Darling & Co., driven by its employee defendant Sperfslage, was coming from the west. It was a 1949 2-ton Ford semitrailer with a steel box eight feet wide, carrying a ton and a half of hides and bones.

The collision appears to have been caused mainly by the failure of one or both of the drivers to keep on the right side of the highway. So the principal controversy on the facts seems to be whether the collision occurred on decedent's (north) or defendant's (south) side of the highway. Defendant Sperfslage was the only witness for defendants. Other witnesses to whom we refer were called by plaintiff.

Latchaw, a state highway patrolman for nine years, arrived at the scene about 20 minutes after the collision. He found the panel truck lying on its top headed south across the roadway about midway of the bridge. The semitrailer was north of the highway headed northeast, its front 85 feet northeast of the northeast corner of the bridge. Latchaw found the windshield of the 'semi' cracked, more on the left side, the left front fender and wheel damaged and bent, the heavy front bumper broken about two feet from the left end and the left door to the cab damaged.

Most of the damage to the panel truck (driven by decedent) was to its top and on its right side. Its front was not damaged except that the right front lamp was broken and there was a slight bruise on the left front fender. Neither running board was damaged. The frame on the right side was all right. The frame on the left side was bent over the left rear wheel, the left rear fender and left door were damaged.

Nine feet of the north rail of the bridge was broken off into the stream below by one or both of the vehicles. It was 42 feet from the east end of the bridge to the east side of the break in the north rail. The west side of the panel truck as it came to rest on its top was about even with the east end of this break. The bridge rail was of white concrete. Latchaw testifies there was white powder in a damaged place on defendants' left front fender and in the break on its front bumper (two feet from the left end). The white powder on the fender is plainly visible in one of the photographs received in evidence and certified to us.

Plaintiff contends this white powder on defendants' fender and bumper is evidence their vehicle struck the bridge rail on decedent's (north) side of the roadway just before the vehicles collided. Other circumstances which tend to support this conclusion are that the semi was much heavier than the panel truck and thus more likely to break off the rail, the 'panel' came to rest just east (the direction from which it came) of the opening in the rail and the damage to the panel was not such as to indicate it could have caused the break in the rail. Then too practically all the debris from the wreck was east of where the panel truck lay although some candy bars and perhaps other articles were west of it.

Latchaw says 'most of the debris was on the north half of the road and north shoulder.' This also appears from a photograph taken by a newspaper man about 30 minutes after the collision. A panel from the right side of the panel truck lay on the north shoulder near the paving east of the bridge. The 'bucket' seat of the panel truck was also just north of the paving about half way between the broken off panel and the bridge.

Tracks made by defendants' vehicle went off the north side of the highway 30 to 40 feet east of the bridge--east of where the seat lay--according to Latchaw. Most of the testimony regarding these tire marks was given by Bunting, a farmer who heard the crash and arrived first at the scene. They were faint marks starting at the center line of the paving about 8 or 10 feet east of the bridge and continuing northeast across the north half of the pavement toward the place where the semi came to a stop. The marks 'kind of kept jumping until they hit the dirt.'

Bunting cleared off much of the debris left on the pavement from the wreck. He testifies 'There was some stuff all over, the glass was mostly where the panel lay.' (We understand this refers to the panel broken from the Chevrolet, not to the vehicle itself.) Some cigarettes from the panel truck were on the south side of the pavement but 'the biggest share' was on the north side. Bunting observed a groove about five inches deep along the north edge of the pavement east of the bridge. This witness asked Sperfslage what happened and was told 'when we hit the glass started flying, I closed my eyes, that is the last I know if it.' Photograph show the glass in defendants' left door was broken.

Sperfslage testifies that as he approached the bridge from the west he noticed the panel truck approaching from the east, he was driving about 45 miles an hour and was much closer to the bridge than the panel was, as he approached he slowed a little, the driver of the panel was coming at great speed, he (decedent) started weaving back and forth three or four times, it was swaying then, his two right wheels went off the pavement on the north side just before the bridge, he pulled it back again, 'then we came together just that quick.'

Sperfslage says as he approached and crossed the bridge he was not on the north side of the highway at any time, the vehicles came together 'on the east corner of the bridge, I was on my right side, he was over the center line on my side, I was blinded by glass, when I opened my eyes my truck had come to a stop on the north side of the highway. * * * The only damage to my truck was the left front and left wheel. Where was no damage to the motor or frame.'

On cross-examination Sperfslage testifies decedent pulled over in front of him on the south lane at the end of the bridge, the vehicles came together at the southeast corner of the bridge, the witness first applied his brakes just before the impact, his speed crossing the bridge was 40 miles an hour, perhaps less, decedent's speed was about 60 miles per hour. On redirect examination the witness says that as decendent approached the bridge he wavered from about a foot on Sperfslage's side of the highway to the 'corner of the paving, sometimes off it.'

Plaintiff offered a written statement signed by Sperfslage three days after the collision which says the other vehicle was 150 feet away when he first observed it, 'Nearer the west end of the bridge, Smith (decedent) swerved over onto my side of the road and I ran into the side of his truck but I don't know which side. I momentarily lost control of my truck, but after I got across the bridge, I brought it to a stop on the north shoulder * * *.'

When asked on cross-examination about the discrepancy between his testimony and the written statement as...