Stevens v. Gear

• Decision Date: 18 October 1949
• Docket Number: 47505.
• Citation: 39 N.W.2d 408,240 Iowa 1348
• Parties: STEVENS v. GEAR et al.
• Court: Iowa Supreme Court

39 N.W.2d 408

240 Iowa 1348

STEVENS v. GEAR et al.

No. 47505.

Supreme Court of Iowa

October 18, 1949

McNett Kuhns & McNett, of Ottumwa, for appellants.

D W. Harris of Bloomfield, for appellee.

SMITH Justice.

The collision between plaintiff's self-driven auto and defendant Fonken's truck (driven by defendant Gear) occurred at about 6 p. m., October 17, 1945, on U. S. Highway 63 approximately 11 miles north of Bloomfield, Iowa. Plaintiff was proceeding in a southerly direction, up grade from the Soap Creek bridge. The truck was northbound.

Plaintiff, Dr. H. L. Stevens, had practiced medicine many years in Floris (a town near the scene of the collision) and in Ottumwa, Iowa; had retired for a short time in 1944, after 50 years of practice; but had returned to Floris to the practice in September of that year, because of the war shortage of doctors in that vicinity.

At the time of the collision he was returning to Floris from the hospital in Ottumwa. He alleges defendant Gear was negligent in failing to yield one-half the traveled highway; in failing to keep a proper lookout; and in failing to have the vehicle under control. The last specification was withdrawn at the conclusion of the evidence.

Defendants' answer denies the alleged negligence and plaintiff's freedom from contributory negligence. Defendant Fonken filed counterclaim for property damage to his truck and its contents on account of plaintiff's alleged negligence and in a second count alleged a 'full and complete settlement and compromise' with plaintiff whereby the latter orally agreed to pay him $1800 but had failed to pay said sum or any part thereof. A verdict was directed against defendant upon this second count and it was not submitted.

The court submitted to the jury the issue of defendants' liability to plaintiff for alleged negligence of defendant Gear and the issue of plaintiff's liability to defendant Fonken on the latter's counterclaim for property damage due to alleged negligence of plaintiff. The jury returned verdict in favor of plaintiff against both defendants and judgment thereon was entered from which they appeal.

Five propositions only are advanced on appeal: (1) The testimony of certain witnesses should have been rejected as contrary to clearly established physical facts and verdict for defendants directed against plaintiff on his alleged cause of action; (2) Verdict should not have been directed against defendant Fonken on count 2 of his counterclaim alleging an agreement of settlement; (3) Consideration of the deputy sheriff's accident report should not have been limited to impeachment purpose; (4) Plaintiff's specification of negligence based on failure of defendant Gear to keep proper lookout should have been withdrawn on defendants' motion; (5) Opinion testimony of a former high school teacher as to the laws of force should have been rejected.

I. Defendants' motion to direct verdict is based upon the proposition that the testimony of certain witnesses should be disregarded as contradictory of certain established physical facts and that without this testimony there was not sufficient evidence to support a verdict for plaintiff upon his pleaded cause of action. These witnesses were the occupants of the Aleshire car.

Mr. Aleshire, his wife, and his mother, Mrs. McMain, testified they were traveling north directly behind defendant's truck for several miles immediately preceding the collision, that the truck was driving most of the time across the middle line of the pavement in such way as to prevent them from passing in spite of their repeated signals which the driver of the truck ignored, and that just before the collision with plaintiff's car the truck was 'over past the middle * * * about two or three feet' (Mrs. McMain); 'well it was over the black line I should judge three of four feet' (Mrs. Aleshire). Mr. Aleshire says plaintiff's car 'never did get over on the lefthand side of the road.'

These three witnesses clearly place the collision on plaintiff's side of the pavement and the inference from their testimony is strong as to the negligence of defendant Gear in failing to keep to his own side. It is impracticable and unnecessary to set out their testimony in detail.

Defendants point out variances between the Aleshire version and the testimony of others (including plaintiff) in the matter of time of the collision; that distance they were back of the defendant's truck; their failure to identify other persons at the scene of the accident and of other persons to identify them as being present. The inference is that they were not present at the scene though Mr. Aleshire says he was one of the men who lifted plaintiff from the wrecked car.

Defendants also make much of certain so-called physical facts claimed to be inconsistent with the testimony of the Aleshires: 'the rear axle of the truck was broken and turned back and the drive shaft was broken and down, and the axle was sticking out of the housing. * * * the rear axle was broken somewhere in toward the center--toward the differential * * *. The hydraulic brakes were knocked out.' With this they couple testimony that grease, presumably from the broken housing, was on the east or defendants' side of the paving 'a foot or a foot and a half from the east edge.' Another witness says 'the big spot of oil was just about at the place where the accident occurred and this was about three feet from the east edge of the pavement. It was nearer the east edge * * * than the center of the road.'

Defendants argue, from the appearance of the vehicles after the impact and the fact that there was broken glass on the east side of the highway, that the truck must have been on its own side.

Something is also attempted to be made of the fact that Mrs. Aleshire was unable to describe the truck, to say whether it had a cattle rack, or what was its color or height.

We have studied the Record with care and are not prepared to say as a matter of law that the testimony of the Aleshires and Mrs. McMain should have been discarded and a verdict directed for defendants. Much of the argument at this point would be proper to the jury but not to the court. Much of the fact situation relied on as 'established' does not have the status. Certainly the discrepancies between witnesses concerning the time of day and failure of witnesses to recognize each other in the dusk as having been at the scene of the collision do not relate to 'physical facts' in the sense in which the term is used in the rule invoked by defendants.

The purely physical facts relied on are: The grease of oil spots on the east or the truck's side of the pavement; broken glass on that side; and the condition of the vehicles after the collision.

The grease on the pavement is testified to by defendant Gear, witnesses Lawson and Burger. The last named witness testified to the condition as he first saw it on Sunday, four days after the accident. Manifestly he could not at that late date, relate the location of the grease to the exact spot where the collision occurred. Gear places it 'about a foot and a half from the east edge of the pavement' and 'ten or twelve feet north of where the plaintiff's car sat after the accident.' Lawson says: '* * * just about at the place where the accident occurred and this was about 3 feet from the east edge of the pavement. It followed the truck down on the shoulder of the highway quite a ways.' It is a fair inference from Lawson's testimony that he did not actually see the collision. Other witnesses, including the deputy sheriff she investigated the scene that evening, did not see or remember seeing, or did not testify concerning, the grease and its location. We do not view the testimony as fixing the exact location of the impact as an uncontradicted 'physical fact' sufficient, as a matter of law, to completely annihilate the testimony of eye witnesses who say the collision was on plaintiff's side of the pavement. The place of actual collision was clearly a question for the jury.

As to be broken glass at or near the scene, witnesses describe it as being on both sides of the pavement and it has no conclusive significance as an established physical fact. The deputy sheriff, in fact, says most of the glass was on the west side of the center line of the pavement. Two others, at least, saw it on the west side.

It is true there is not much if any variance in the testimony concerning the appearance and condition of the respective vehicles after the impact. But no definite light is thrown by such testimony on the exact place or manner of the collision--at least it falls far short of establishing a 'physical fact' as to the side of the pavement where the vehicles collided, which an eye witness could not be heard to contradict.

Plaintiff's car had apparently been struck on its left side about opposite the driver's seat. It was not a head-on collision, but more like a sidewipe. Nor was there damage to the front end of the truck. The evidence indicated, according to the testimony of the deputy sheriff, that the left front corner of the van, which was wider than the cab, had struck or been struck by the left side of plaintiff's car. There was nothing to make impossible or improbable the testimony of eyewitnesses that the vehicles collided or sideswiped on plaintiff's side of the middle of the pavement. That was, under the Record, a jury question.

The 'physical fact rule' is well-established and sound. But it applies 'only where the existence of such facts and their connection with the question at issue, is established or admitted; and proof of such nature cannot be construed to establish a particular conclusion as a matter of law unless the facts and circumstances lead to but one conclusion to the...