Soreide v. Vilas & Co., 48951

Decision Date26 July 1956
Docket NumberNo. 48951,48951
PartiesLaura M. SOREIDE, Administratrix of the Estate of Edwin S. Soreide, Deceased, Appellee, v. VILAS & COMPANY, a Corporation, and Oliver W. Vilas, Appellants. STANDARD OIL COMPANY, a Corporation, Appellee, v. VILAS & COMPANY, a Corporation, and Oliver W. Vilas, Appellants.
CourtIowa Supreme Court

Wendell T. Edson, Storm Lake, Sifford & Wadden, Sioux City, and Wilson & Vest, Sac City, for appellants.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellees.

GARFIELD, Justice.

These two law actions, consolidated for trial, resulted from a night-time collision of two automobiles at or near a 'Y' intersection of paved primary highways on May 21, 1954. One action is for damages to the Chevrolet car of plaintiff Standard Oil Co., the other for damages to the estate of the employee-driver of that vehicle, Edwin S. Soreide, killed in the collision. Defendants are Vilas & Co., owner, and Oliver W. Vilas, driver, of the other car, a Cadillac. There was a jury verdict and judgment for each plaintiff from which defendants have appealed.

The collision occurred on east and west U. S. Highway 20 near the place where the west branch of the 'Y' approach from Iowa Highway 110 joins 20 from the north. Highway 110 does not go further south. The Vilas Cadillac was proceeding east on 20. Mr. Vilas intended to turn north onto 110 over the west branch of the 'Y.' Vilas, sole surviving eyewitness to the crash, testifies the Chevrolet came down the west fork of 110, 'didn't stop at the intersection, came right through onto 20, across in my (south) lane and crashed into my car.'

Plaintiffs' cases necessarily rest on circumstantial evidence consisting primarily of tire and other marks upon or near Highway 20 and physical facts at the scene of the collision from which plaintiffs claim the jury could properly find the Chevrolet did not come down the west branch of the 'Y' as Vilas testifies but was traveling west on 20 and Vilas negligently caused the collision by driving on the wrong (north) side of the center line where the cars collided.

Questions presented on appeal are whether the court erred in admitting evidence of marks upon the highway and in overruling defendants' motions for directed verdict, judgment notwithstanding verdict, and new trial. It is also claimed the judgment on the verdict for $50,000 in the Soreide case is excessive.

I. Of course plaintiffs had the burden to prove the collision and resulting damage were caused by the negligence of Vilas in one or more of the respects alleged by them and that Soreide was free from contributory negligence.

Since the parties disagree as to the requisite degree of proof in a case resting on circumstantial evidence we will repeat what so many recent decisions say on that point. The evidence must be such as to make plaintiffs' theory of causation reasonably probable, not merely possible, and more probable than any other theory based on such evidence. It is not necessary the testimony be so clear as to exclude every other possible theory. Turner v. Hansen, 247 Iowa ----, 75 N.W.2d 341, 345; Bokhoven v. Hull, 247 Iowa ----, 75 N.W.2d 225, 227, and citations; Whiting v. Stephas, 247 Iowa ----, 74 N.W.2d 228, 231-232; Shinofield v. Curtis, 245 Iowa 1352, 1357, 66 N.W.2d 465, 468, and citations.

Hackman v. Beckwith, 245 Iowa 791, 795, 64 N.W.2d 275, 278, adds following the statement of the above rule: 'But this means only the evidence must be such as to raise a jury question within the limits of the foregoing rule; it need not be conclusive.'

In considering defendants' contention the testimony is insufficient for submission to the jury of course we view it in the light most favorable to plaintiffs. Weilbrenner v. Owens, 246 Iowa 580, 582, 68 N.W.2d 293, 294, and citation; Hackman v. Beckwith, supra.

II. We disagree with the contention defendants stress that an inference may not be based upon another inference or upon a fact the existence of which itself rests upon an inference. While some authorities use substantially the statement defendants urge upon us it is unsound and, like many other courts, we have rejected it. Inferences may legitimately rest on facts established by other inferences. What is meant by the alleged rule for which defendants contend is merely that an inference may not be based upon evidence which is too uncertain or speculative or raises only a conjecture or possibility. See Martin v. Bankers' Life Co., 216 Iowa 1022, 1036-1038, 250 N.W. 220, 226-227; Welsch v. Charles Frusch Light & Power Co., 197 Iowa 1012, 1021-1022, 193 N.W. 427, 431; Fegles Const. Co. v. McLaughlin Const. Co., 9 Cir., 205 F.2d 637, 640, and citations; Toliver v. United States, 9 Cir., 224 F.2d 742, 745; Annotation 95 A.L.R. 162, 182, 187-188; 1 Wigmore on Evidence, 3d Ed., section 41; 1 Jones Commentaries on Evidence, 2d Ed., section 364; 31 C.J.S., Evidence, § 116b, p. 730; 20 Am.Jur., Evidence, section 165, page 169.

Fegles Const. Co. v. McLaughlin Const. Co., supra , cites numerous decisions from different jurisdictions for the statement 'The fallacy that an inference may not be based on another inference has been frequently repudiated by the courts * * *.'

III. Defendants argue it was error to admit evidence, said to be 'inherently improbable or impossible,' of marks upon and near Highway 20 which plaintiffs claim show the Chevrolet was traveling west on 20 in its right (north) lane and the collision occurred there. The evidence referred to describes a fresh tire mark 74 feet, 10 inches long in the north lane of 20, starting 4 1/2 feet west of a V-shape blacktop area north of Highway 20 and southeast of the west approach from 110. The west three feet of the mark were smeared. The mark is shown by the broken line designated 'B' on the accompanying plat, prepared from an exhibit. About three feet south of the west end of the long tire mark, a little south of the center of the north lane, there was a fresh crescent-shaped gouge in the concrete pavement, about two feet long and one-fourth inch deep. 'It was bright and new. Just happened.' This gouge is marked 'A' on the accompanying plat. Northwest of the gouge there was a fresh tire mark, designated 'C' on the plat, on the north curb of 20 at the west side of a lane leading to a farmstead. 'It looked similar to this long skid mark.' The Soreide car came to rest where the rectangle north of the highway, marked 'S', appears on the plat. On a direct line between the tire mark 'C' and the wrecked Chevrolet the sod was freshly torn in several places. 'It looked as though an object had skidded across the grass and plowed it out.'

This plat, above referred to, may help visualize the physical facts at the scene of the tragedy. The rectangle marked 'V' just east of the entrance to the Jacobson driveway represents the Cadillac as it came to rest. The other two rectangles on 20, marked 'V' and 'S', indicate the location of the two cars, as testified to by Vilas, when they collided.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

We have no doubt it was proper to admit the evidence as to the tire and other marks on and near Highway 20 at the scene of the crash. It is well settled that testimony descriptive of tire marks at the place of a collision is admissible, especially on the question of the location of the vehicles with respect to the center of the highway, where as here it may be reasonably inferred the marks were made by one of the colliding vehicles. Weilbrenner v. Owens, supra, 246 Iowa 580, 587, 68 N.W.2d 293, 297, and citations, especially Annotation 23 A.L.R.2d 112, 116; Thornbury v. Maley, 242 Iowa 70, 77-78, 45 N.W.2d 576, 581; Brady v. McQuown, 241 Iowa 34, 37-38, 40 N.W.2d 25, 28. See also Slabaugh v. Eldon Miller, Inc., 244 Iowa 29, 33, 55 N.W.2d 528, 530, which says, 'Often there are skid marks which seem to indicate the true situation; * * *. The marks are persuasive, but not conclusive.' It was there contended marks upon the pavement conclusively rebutted opposing direct testimony.

There is ample basis for the inference the long tire mark, the mark on the north curb and the torn places in the sod were made by the Soreide automobile and that the collision occurred at or near the gouge in the north lane of the pavement. The cars crashed about 11 p. m. Mr. and Mrs. Jacobson heard the collision and rushed to the window to see what happened. Jacobson testifies he 'couldn't get out there fast enough,' he then saw the long skid mark, the gouge in the concrete, the mark on the north curb and the torn places in the sod on a line to within a few feet of the Chevrolet. He describes all of them. He had been over this stretch of highway several times that day, as late as 7 p. m. He was sure the long skid mark was not there and he did not observe the gouge in the pavement at that time. Jacobson also says the gouged out places in the sod were not there the morning before the cars crashed.

State Highway Patrolmen Grotewald and Kurtz, with long experience investigating highway accidents, reached the scene about a half hour after the crash. The two cars had not been moved. They observed the same marks Jacobson saw and described their location and appearance substantially as he does. Grotewald testifies there were seven 'ribs' in the long skid mark, the same design he found on the front tires of the Chevrolet. Grotewald says too, what seems obvious, 'Whatever danger the driver of the car which made the skid mark apprehended, he saw it when he was (a) further distance back from the beginning of the mark.' Other testimony tends to bear this out. Grotewald also testifies that two pictures showing each of the wrecked cars indicate the point of contact was the left front of both vehicles.

State Highway Patrolman Soppeland, a fatality investigator for the patrol, arrived at the scene between 8 and 9 the morning after...

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