Spry v. Lamont

Decision Date12 January 1965
Docket NumberNo. 51494,51494
Citation132 N.W.2d 446,257 Iowa 321
PartiesFlorence O. SPRY, Administratrix of the Estate of Cecil L. Overbaugh, Deceased, Appellee, v. Hugh LAMONT and Geraldine Lamont, Appellants.
CourtIowa Supreme Court

Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, and Sebesta & Kuehnle, Mechanicsville, for counterclaimants-appellants.

Zimmerman & Zimmerman, Waterloo, Simmons, Perrine, Albright, Ellwood & Neff, Cedar Rapids, and J. E. Heiserman, Anamosa, for appellee.

GARFIELD, Chief Justice.

The administratrix of the estate of Cecil L. Overbaugh, deceased, brought this law action against Hugh and Geraldine Lamont, husband and wife, to recover for his death in a head-on collision of automobiles on a blacktop county highway about 1 1/2 miles south of Mechanicsville about 6:15 p. m., December 2, 1961. Decedent was alone in his 1938 Buick driving south. Mrs. Lamont was driving north in her husband's 1961 Valiant in which her aged mother-in-law was a passenger.

It is admitted Mrs. Lamont was driving with her husband's consent and he would be liable under section 321.493, Code 1962, I.C.A., for damages by reason of her negligence. For convenience we refer to her as if she were sole defendant.

Mrs. Lamont was seriously injured in the collision and suffered complete loss of memory regarding it. The aged mother-in-law was killed. Mrs. Lamont counterclaimed for damages from her injuries and Mr. Lamont claimed damages for loss of consortium. Trial resulted in jury verdicts denying all three claims. From judgment on the verdicts the Lamonts have appealed.

Errors are assigned in overruling defendant's motion for directed verdict on plaintiff's claim and her motion to withdraw, for lack of evidential support, the charges of defendant's negligence therein. Errors are also claimed in some of the jury instructions and a few rulings on evidence. We find no error assigned and argued by defendant for which she is entitled to a reversal.

I. Defendant is the only living eyewitness to the accident and, as stated, she suffered amnesia as a result of it. Each party was therefore entitled to the benefit of the no eyewitness rule on the issue of freedom from contributory negligence. See Ruble v. Carr, 244 Iowa 990, 995, 59 N.W.2d 228, 231-232, and citations; Lingle v. Minneapolis & St. Louis Ry. Co., 251 Iowa 1183, 1187-1188, 104 N.W.2d 467, 469-470, and citations, where the rule is stated.

II. It was dark, very foggy and visibility very poor at the time and place of the accident. The evidence as to exactly how and where the collision occurred is wholly circumstantial. The principal fighting point in the evidence is where the collision occurred with reference to the center of the 26-foot traveled (blacktopped) part of the highway. Basis for the assigned errors most argued is the contention that as a matter of law the collision occurred on defendant's (east) side of the center of the highway and there is no credible evidence to the contrary.

After the impact decedent's Buick was sitting approximately in the center of the highway, headed southeast, according to several of the witnesses. Both its rear wheels were on the west (its right) side of the center, both front wheels on the east (defendant's) side. Defendant's Valiant was standing upright in the ditch on the east side of the grade, headed north, its front end about eight feet south of the Buick. A state highway patrolman who arrived at the scene some 30 minutes after the accident measured 19 feet between the left front fenders of the two vehicles. Heaviest damage to each car was to its left front, indicating that portion of each vehicle collided.

III. The trial court submitted to the jury five of the charges of negligence contained in plaintiff's petition: 1) failure of defendant to yield half the traveled portion of the road; 2) failure to keep a proper lookout; 3) excessive speed under the conditions then existing; 4) failing to have her vehicle under control; and 5) driving at a speed greater than permitted defendant to bring her vehicle to a stop within the assured clear distance ahead.

The court submitted to the jury four charges of negligence against decedent in defendant's counterclaim. Two were practically identical with two and four above, also failing to keep on his (decedent's) righthand side of the highway and to give half the traveled way by turning to the right when meeting defendant's car.

IV. Any error in overruling defendant's motion to direct a verdict for her on plaintiff's claim or in submitting to the jury, on such claim, the grounds of negligence charged therein must be deemed without prejudice to defendant in view of the jury verdict and judgment denying the claim. The effect of the verdict is the same as if the motion to direct had been sustained. LeClere v. Iowa Electric Light & Power Co., 254 Iowa 779, 789, 119 N.W.2d 203, 209; Schneider v. Keokuk Gas Service Co., 250 Iowa 37, 39, 92 N.W.2d 439, 440; Cunningham v. Court, 248 Iowa 654, 661-662, 82 N.W.2d 292, 296-297; Bennett v. Ryan, 206 Iowa 1263, 1265, 222 N.W. 16; Baker v. Zimmerman, 179 Iowa 272, 277-278, 161 N.W. 479; Herman & Marks v. Hass, 166 Iowa 340, 342, 147 N.W. 740, Ann.Cas.1917D, 543; Michaelsohn v. Smith, N.D., 113 N.W.2d 571, 574.

5 Am.Jur.2d Appeal and Error, section 792, states: 'Errors committed against a party are cured by a verdict or judgment in his favor.'

5A C.J.S. Appeal and Error § 1758, pages 1121-1122, says: 'In respect of an erroneous refusal to direct a verdict it has been held that the error is not prejudicial * * * where the verdict is for the party making the motion, as to the count to which the motion was directed, * * *.' Id., section 1759, page 1129, states: 'The rule with respect to harmless error has also been applied * * * where the finding on the issue improperly submitted was against the party in whose behalf it was submitted; * * *.'

V. Defendant contends submission to the jury of the charges of negligence made against her in plaintiff's petition was prejudicial to her right to recover on her counterclaim in that the jury would believe the charges so submitted bore on defendant's freedom from contributory negligence as alleged in the counterclaim. The instructions referred to do not purport to bear on defendant's freedom from contributory negligence but it is possible the jury may have believed they did.

At best it is doubtful if defendant objected to the instructions in the trial court on the ground now urged. If she did not, of course she is not entitled to urge the point here. The procedural situation somewhat resembles that in Fagen Elevator v. Pfiester, 244 Iowa 633, 637, 638, 56 N.W.2d 577, 579, and Slabaugh v. Eldon Miller, Inc., 244 Iowa 29, 38-39, 55 N.W.2d 528, 533.

However, assuming the jury considered the instructions on the charges of negligence made against defendant as bearing on the issue of her freedom from contributory negligence, we think they were not, for this reason, erroneous. The charges so submitted, stated in Division III, supra, are failure of defendant to yield half the traveled way (required by section 321.298, Codes 1958, 1962, I.C.A.), keep a proper lookout and have her vehicle under control; also excessive speed under existing conditions and speed greater than permitted her to stop within the assured clear distance ahead (in violation of section 321.285). In connection with the assured clear distance question, there is evidence decedent's Buick was stopped at the time of the collision and an amendment to the counterclaim so alleges.

In considering the propriety of submitting to the jury the question whether defendant was free from contributory negligence in the above respects, if the instructions may be construed as doing so, it is important to bear in mind that the burden rested on her, under her counterclaim, to prove by a preponderance of the evidence she was free from negligence, including violation of an applicable statute, which contributed in any way or degree directly to her injury. Defendant's argument boils down to the contention she discharged this burden as a matter of law and there was no room for a jury finding she failed to show freedom from contributory negligence in the above respects.

The contention cannot be accepted. Many decisions point out that in the absence of an admission by his adversary it is not often a party who has the burden on an issue establishes his claim as a matter of law. This is specially true where the issue is one such as freedom from contributory negligence which is ordinarily for the jury. Ruble v. Carr, supra, 244 Iowa 990, 993-994, 59 N.W.2d 228, 230-231, and citations. See also rule 344(f), pars. 10, 16, 58 I.C.A.; Shepherd v. McGinnis, Iowa, 131 N.W.2d 475, 483-484.

The Ruble case is quite in point on the question whether defendant established as a matter of law her freedom from contributory negligence in the respects plaintiff's petition alleges she was negligent. (Plaintiff's reply to the counterclaim does not allege defendant was contributorily negligent in any particular.) The Ruble collision was between vehicles approaching each other on a foggy night. There, as here and in most such cases, a vital factual issue was which car was wholly or partly on the wrong side of the road. The trial court, sitting as a jury, found defendant was negligent in this respect but that plaintiff failed to show his freedom from contributory negligence in this and other respects even though, as here, the no eyewitness rule was applicable. We affirmed the decision.

So here, we think the jury could properly find it did not conclusively appear the cars collided wholly on defendant's (east) side of the center of the highway. It is entirely possible the jury was unable to find where the cars collided with reference to the center. The evidence is circumstantial, such as the position of the vehicles as they came to rest, tire marks and the location of dirt...

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