Stiefel v. Wandro

• Decision Date: 12 January 1955
• Docket Number: No. 48598,48598
• Citation: 68 N.W.2d 53,246 Iowa 807
• Parties: George J. STIEFEL, Appellee, v. Alvin WANDRO, Appellant.
• Court: Iowa Supreme Court

Page 53

68 N.W.2d 53

246 Iowa 807

George J. STIEFEL, Appellee, v. Alvin WANDRO, Appellant.

No. 48598.

Supreme Court of Iowa.

Jan. 12, 1955.

Rehearing Denied March 11, 1955.

Donohue & Wilkins, New Hampton, for appellant.

Reed & Beers and R. Bruce Hughes, Waterloo, and R. J. Sullivan, New Hampton, for appellee.

WENNERSTRUM, Chief Justice.

Plaintiff, George Stiefel, brought suit against the defendant, Alvin Wandro, for damages sustained when struck by defendant's automobile as he, the plaintiff, claims he was alighting from a caterpillar tractor. The case was submitted to the jury which returned a verdict against the defendant in the amount of $18,500. The injuries sustained by the plaintiff consisted of the fracture of the tibia and fibula of his left limb. Subsequent to the verdict as returned the defendant filed a motion for judgment notwithstanding the verdict and later a motion for new trial. These motions were overruled and the defendant has appealed.

The accident which resulted in the plaintiff's injuries occurred on September 10, 1951 at about 4 o'clock in the afternoon. Immediately prior to this time the plaintiff had been operating a caterpillar tractor which was pulling a threshing machine separator on a north and south gravelled surfaced county road approximately 25 feet in width. The tractor unit was five feet, nine inches, in width and was eleven feet in length. The separator was approximately 27 feet in length and seven feet, four inches in width and about 14 feet high. The tractor was joined to the threshing machine by what is termed a hitch, and which extended approximately six to eight feet in front of the separator. The entire unit, tractor, hitch and separator, was approximately 44 to 46 feet in length.

It had been raining for a short time prior to the accident. The plaintiff had reached a point referred to in the record as the Wright farm buildings and driveway. They were located on the west side of the north and south road. The tractor and the separator were on the extreme easterly side of the highway headed north. The plaintiff stopped the tractor immediately in front of the driveway with the apparent intention of going into the farm buildings to obtain shelter from the rain.

The defendant was driving an automobile north on the road in question. Some 500 feet south of the Wright driveway there is a hill. The defendant proceeded down this hill and, as he testified, observed the threshing machine and tractor standing in front of the Wright driveway. It was continuing to rain and the defendant was driving approximately 35 miles per hour on the right, or east side of the highway with the double windshield wipers on his car operating.

He turned out to go around the threshing machine when he was 40 or 50 feet from the machine and apparently reduced his speed to 25 miles an hour. According to his testimony his view of the tractor unit was limited by reason of the position of the threshing machine and as he was passing the threshing machine he was between two and three feet from it. Just as he came even with the tractor the plaintiff, Stiefel, jumped or stepped off of the tractor and was struck by the defendant's car. There were three witnesses who detailed the circumstances of the accident. They were the plaintiff, the plaintiff's witness Kenneth Wright, and the defendant Alvin Wandro.

The plaintiff's testimony as it relates to the accident is summarized as follows: I stopped the tractor and threshing machine on the east side of the highway at the Wright gateway. * * * I was as close as I could possibly get without getting into the ditch. The ditch was about two feet deep. There was no space between the tractor and the ditch. * * * I was going to stop in this Wright place to get out of the rain. * * * Q. * * * after you stopped your outfit, tell the jury what you did and what occurred. A. I stepped out onto this platform with the right leg and the left leg I had on the track and my hand was on the seat of the tractor. Then I looked back. * * * There was no one coming from my front. I did not see anything when I looked back. I could see as far back as the intersection. I did not see the Wandro automobile. After I looked back I stepped out on this track and placed both of my feet on the track then placed the right foot on this track and still hanging on the seat with my right hand. I was facing north then I started to let myself down on the ground, stepped down to the ground. I did not get to the ground. The next thing I remember was that something hit me on my left leg. Then it threw me. Just before I was hit I imagine my left leg was about a foot outside of the track of the tractor. I stepped down. I was not jumping down. The next thing I remember I was on the ground. I am not sure where I was with reference to the front of the tractor on the highway. I was conscious. I observed where Wandro's car stopped after the accident. It was parked on most of the bridge with Mr. Wandro standing behind it when I saw it. * * * I later measured from the front of the tractor down to the place where I saw this car stop after it hit me. It was 375 feet. I do not know whether Mr. Wandro stopped his car before he got down there. Kenneth Wright and Kenneth Roethler came to help me. They were at the Wright farm. I did not hear any horn or signal just prior to when the accident took place. They lifted me into Kenneth Roethler's car. They couldn't get me into the seat because it was so painful. They left me on the bottom of the floor with Kenneth Roethler holding my shoulders while we went to town. I was partially sitting up in the car. I was not able to bend my injured leg. It gave me considerable pain. It hurt terrible. They took me to St. Joseph's Hospital. I remained conscious all the time. * * * I received an injury to my head at the time of the accident--just on the back of my head. * * * I think they put in two or three stitches to close the wound in the back of my head. * * * There was blood all over my shirt after the accident.

I was in the hospital for 95 days and had a cast on my leg and it came up on my hip as far as it could. It started at the bottom of my foot, just my toes were sticking out. * * * After 60 days they took this cast off and put a new cast on with a walking iron under it. * * * I had this second cast on approximately 9 months. Altogether I had the two casts on for approximately 11 months. When I left the hospital on December 14, 1951 I could get around on crutches. The leg at that time was giving me plenty of pain.

Kenneth Wright's testimony is in part as follows: On September 10, 1951 I saw the accident involving George Stiefel and Alvin Wandro. I was standing in the driveway of the corn crib on our farm. This corn crib is just a trifle north of the driveway running into our farm yard and I would say about 250 feet west. * * * Kenneth Roethler and my father were with me, they were standing farther back in the corn crib. * * * While I was standing there I saw Mr. Stiefel approaching from the south. It was raining. * * * Stiefel was driving a caterpillar tractor, pulling a threshing machine. When he was directly in front of the driveway he started to get off. He looked back. He looked to the north first and then looked back, then he started to jump and as he was stopping the tractor I noticed this car coming over the hill to the south. It kept coming up closer to the separator and tractor. * * * He (Stiefel) jumped and the car came by and hit him. He hadn't quite hit the ground when the car hit him. I believe it hit him while he was in the air, the way it looked. It caught him with the bumper and grill and tossed him up over the front of the car and he broke the windshield so he evidently must have hit the windshield and it carried him about 15 feet and rolled him over on the right side of the car. Mr. Stiefel landed just a little to the east of the center of the road. The Wandro car pulled to the right hand side and went down the road. * * * It might have been 75 feet, it might have been 100 feet.

I figured the speed of the Wandro car was about 35 or 40 miles an hour when he came down the road and as he got to the machine he slowed down a little. * * * I didn't hear him sound any horn.

Inasmuch as it is the defendant's contention that the plaintiff was guilty of contributory negligence as a matter of law and that he jumped into the path of the car we shall further set out a portion of the testimony of the witness Kenneth Wright as shown by the cross-examination: He was standing on the side of the tractor just about the time Wandro turned out to go by. He 'kinda' bent over a little and looked back and then he looked to the north first, then he 'kinda' bent over a little to see back and he evidently couldn't see by the machine. * * * He jumped and just as he jumped the car was along the side. * * * He was in the air when he struck the car. He hadn't yet reached the ground. * * * It looked as though he was maybe a foot and a half off the ground at the time it hit him. I think he hit the front part of the Wandro car--front bumper, front fender.

Kenneth Roethler was a witness for the defendant. He did not see the accident. Immediately after he was told by Kenneth Wright what had happened he drove his car out to the roadway. He states George Stiefel was lying on the road about 15 feet ahead of the tractor and that the Wandro car was stopped 75 feet north of the tractor and on the east side of the road.

Alvin Wandro was a witness in his own behalf. His testimony as it relates to the accident is summarized as follows: When I was coming down the hill I was driving towards the east side of the highway and I was driving about 35 miles an hour. * * * When I was probably 40 or 50 feet south of the threshing machine, I turned to the left to go by. * * * I slowed down when I was going by. * * * I would say I was about three feet, two and a half to three feet, west of the...