Stilson v. Ellis

• Decision Date: 07 May 1929
• Docket Number: 39488
• Citation: 225 N.W. 346,208 Iowa 1157
• Parties: FLOSSIE STILSON, Appellee, v. A. C. ELLIS et al., Appellants
• Court: Iowa Supreme Court

225 N.W. 346

208 Iowa 1157

FLOSSIE STILSON, Appellee, v. A. C. ELLIS et al., Appellants

No. 39488

Supreme Court of Iowa, Des Moines

May 7, 1929

REHEARING DENIED SEPTEMBER 30, 1929.

Appeal from Cerro Gordo District Court.--M. H. KEPLER, Judge.

This was an action by plaintiff to recover damages for personal injuries to herself and the impairment of her assignor's automobile through the negligence of the defendant A. C Ellis in operating a motor vehicle belonging to the other defendant, Mary Ellis, his wife. After a trial to a jury there was a verdict for the plaintiff, and the defendants appeal.

Affirmed.

Blythe, Markley, Rule & Clough, for appellants.

H. H. Uhlenhopp, for appellee.

KINDIG, J. ALBERT, C. J., and FAVILLE, WAGNER, and GRIMM, JJ., concur. EVANS, J., not participating.

OPINION

KINDIG, J.

Plaintiff- appellee and her husband, who is a farmer, lived near Hampton. They, together with their neighbors, Mr. and Mrs. Anderson, drove from their homes in a four-door Ford sedan on the morning of November 9, 1926, for the purpose of attending a funeral near Armstrong. A relative of the husband of appellee had died. The Ford sedan belonged to appellee's husband, and, on the occasion under consideration, was being driven, controlled, and managed by him. On this trip, appellee, with Mrs. Anderson, rode in the back seat, and the two men were in front. This party of four left their homes north of Hampton at about 7:30 in the morning, and, according to their testimony, reached the scene of the accident (which was about a mile and one half west of Clear Lake) at approximately 8:30. According to appellee's evidence, the journey was made at a rate of speed never exceeding 30 miles an hour, and while passing through towns, the rate was diminished to meet the occasion.

When leaving Clear Lake, the Ford car in which appellee was riding followed a paved highway, about 18 feet wide. That thoroughfare extended in a general northeasterly and southwesterly direction from that town to the place of collision with appellants' Buick automobile. During this journey, appellee's husband drove on the right-hand side of the road. Thus they were proceeding when the appellant A. C. Ellis suddenly drove northward from his private driveway on the north side of the lake onto the highway in front of the on-coming Ford car in which appellee was riding. Necessarily there was an impact, and, as a result thereof, appellee received the injuries of which she now complains, and her husband's automobile was damaged. His right of action growing out of the impairment to the automobile was assigned to appellee.

Errors are assigned by appellant because the court submitted plaintiff's case to the jury, gave erroneous instructions, refused others that should have been given, and wrongfully admitted and excluded evidence. Appellants ask a new trial, therefore, and for the further reasons that appellee's witnesses wrongfully referred to liability insurance, and impermissible argument was made by appellee's attorney.

I. There is a challenge made by appellants that the evidence is not sufficient to establish their negligence. Hence, the first problem confronting us for solution is to determine whether the appellee met the burden of proof in this respect.

Allegations of negligence made by appellee against the appellants, and therefore submitted by the court to the fact-finding body, were: Did the appellant A. C. Ellis, first, fail to stop the automobile which he was driving, before passing upon the main paved public highway; second, fail to look for other vehicles passing or approaching; third, fail to give the right of way to the automobile in which appellee was riding; fourth, fail to have said Buick automobile under proper control, so that he was unable to stop or turn the same when the collision was imminent; fifth, carelessly drive across said public highway to the north and left-hand side thereof directly in front of the automobile in which appellee was riding, so close thereto that the driver thereof could not turn and avoid the collision?

If appellee's evidence was such that there was legal support for the jury's verdict based thereon, then there was no error at this juncture.

In Kern v. Kiefer, 204 Iowa 490, 215 N.W. 607, it is said that the defendant is not entitled to a directed verdict unless "* * * by giving the opposite party the benefit of the most favorable view of the evidence the verdict against him is demanded."

See, also, Grohe v. Jackson, 195 Iowa 705, 192 N.W. 808; Howard v. First Nat. Bank, 192 Iowa 432, 185 N.W. 105. Conflicting testimony produced by the appellants does not change the rule under the circumstances here involved. It is for the jury to say whether the preponderance of the evidence is with the appellee or the appellants. If we give to the appellee, then, as we must, the most favorable view of her evidence, it is necessary to hold that the court was justified in submitting each of the foregoing issues of negligence to the jury, and in refusing to withdraw any one of them from the consideration of that body. Rehearsal of the material facts will demonstrate the correctness of this pronouncement.

Homer Stilson, appellee's husband, said that, immediately before the accident, he was driving 15 or 20 miles per hour, on the proper side of the pavement. Some obstruction to the drive-way in question was caused by a garage to the east thereof. Therefore, appellee's husband did not see appellant A. C. Ellis in the Buick until the Ford was about 40 steps east of the point in question. Ellis then was "just coming out on his driveway up onto the pavement. He wasn't quite up to the pavement."

"Q. What was the condition of the road? A. Icy. Q. When you first saw Mr. Ellis first coming out of the driveway, what did you do? A. I put on my brakes a little, to slow down. Q. What, then, did Mr. Ellis do? A. Well [he slowed down] I thought he was going to stop. * * * I took my brakes off. That was before he was on the pavement. * * * I took my brake off, and started to go again, and went * * * about half the distance. Q. And then, after you started up again, what did Mr. Ellis do? A. Well, after I took my brakes off and started to go again, he came out on the pavement. He drove clear over on the right-hand side, at a kind of an angle. Instead of coming up on his own side, he made a big circle, and came on my side of the road,--the right-hand side. * * * His front wheels would be about three feet from the north edge of the pavement. * * * I was just right on top of him. I was going [to turn to the left], but there was a car coming [behind Ellis, from the opposite direction]. I couldn't do that, so I just put on my brakes, and threw the rear end into him. Q. Had you seen this other car before this? A. No; there was a corner there, just a little way behind there. Q. How close were you * * * to the Ellis car [when you threw on your brakes and turned to the right]? A. I suppose maybe 10 feet, or 15."

Apparently there was a trailer on the back of the Ellis car, but the car itself was approximately 18 feet long. Furthermore, it seems that the Buick had not been kept in a garage the night before, but stood out in the cold weather, and consequently did not run well while it was being warmed up. Witnesses for appellee say that Mr. Ellis apparently was having trouble with his car, and while approaching and afterwards, while upon the pavement, he had "one hand on the steering wheel and the other on the gears," and "he was looking down at the gears." Description of the manipulation is made by appellee's witnesses in these words: "The Buick was running wild." A. C. Ellis himself said:

"Then I got around where I should be, and stopped. I might have just rolled along. Just let her go a little bit."

Obviously it appears also that the Buick was not under control, and the driver had difficulty in getting it back to its proper side of the pavement. Inconsistency appears, in a place or two, between the statements made by appellee's husband and those made by Mr. Anderson, who was riding with him. Yet, on the whole, they are not fatally irreconcilable. Throughout this period of time, appellee, as before stated, was in the rear seat, watching the ditch near the side of the pavement, and she did not see the Buick until her husband's Ford was right upon it. Other facts and circumstances are revealed in the record which corroborate appellee and her witnesses. No attempt has been made to mention all of them.

Clearly then, there was evidence in the record to substantiate each and all of the allegations of negligence submitted to the jury by the court. Undoubtedly the jury had a right to find that A. C. Ellis did not stop his car or look before entering upon the highway; that he was having trouble with the machine, and did not have it under control; that he gave appellee's husband the right to understand he would stop, and then suddenly went forward again; that the Ellis car not only went upon the pavement, but on the left-hand side thereof, in such a way as to obstruct the Ford car in which appellee was riding: and furthermore, the fact-finding body could properly conclude this was all done so suddenly that appellee's husband did not have any warning thereof. Plainly, the result of the jury's verdict indicates they believed the appellee and her witnesses. That being true, there was a foundation for saying appellants were negligent. Resultantly, they were not entitled to a directed verdict or the withdrawal of any of the issues heretofore mentioned, and the trial court properly submitted the cause to the jury. See Olson v. Shafer, 207 Iowa 1001, 221 N.W. 949. Parenthetically, it is here noted that the testimony of appellee and her witnesses was in many...