Tiemeyer v. McIntosh

• Decision Date: 05 May 1970
• Docket Number: No. 53753,53753
• Citation: 176 N.W.2d 819
• Parties: Kim K. TIEMEYER, a Minor by her next friend, Kenneth Tiemeyer, and Kenneth Tiemeyer, Appellants, v. Daniel Boone McINTOSH, David LeRoy Amentell, and Burlington Yellow Cab Co., Inc., Appellees.
• Court: Iowa Supreme Court

Page 819

176 N.W.2d 819

49 A.L.R.3d 285

Kim K. TIEMEYER, a Minor by her next friend, Kenneth Tiemeyer, and Kenneth Tiemeyer, Appellants, v. Daniel Boone McINTOSH, David LeRoy Amentell, and Burlington Yellow Cab Co., Inc., Appellees.

No. 53753.

Supreme Court of Iowa.

May 5, 1970.

Hildreth & Ford, Burlington, for appellants.

Cray, Walter, Cray & Loeschen, Burlington, for appellees.

LeGRAND, Justice

This action arises out of an automobile accident in Burlington on January 15, 1966. Plaintiff Kenneth Tiemeyer sues on his own behalf and also as next friend of his minor daughter, Kim K. Tiemeyer. For convenience we refer to her as the plaintiff. The defendants are David L. Amentell, driver of a Yellow Cab in which plaintiff was a passenger; Burlington Yellow Cab Co., Inc., owner of the cab; and Daniel B. McIntosh, driver of the other car involved in the accident.

The case was tried to the court without a jury. The trial court found the negligence of McIntosh was the sole proximate cause of the accident. He does not appeal. Kenneth Tiemeyer was awarded judgment for $842.80 against McIntosh for medical and other expense incurred on behalf of his injured daughter. She was given $7500.00.

The action was dismissed as to both Amentell and the Burlington Yellow Cab Co., Inc. Plaintiff appeals from that part of the judgment.

Unfortunately for plaintiff it seems McIntosh is judgment-proof. It is important therefore that plaintiff secure a reversal of the trial court's judgment of dismissal against the cab company and Amentell if she is to have anything for her injuries.

The facts preceding the accident are simple and virtually uncontroverted. Plaintiff was a paying passenger in the Yellow Cab driver by Amentell. She occupied the front seat because he opened that door for her as she entered the cab. The cab was not equipped with seat belts. Amentell proceeded south on Curran Street at about 25 miles per hour, which is the legal speed limit at that point. The street is level and straight. The pavement was dry. As the cab approahed and entered the intersection of Curran and Washington Streets, McIntosh was driving his vehicle north on Curran, also approaching Washington Street. He made a left turn directly in front of the cab and the two collided. McIntosh did not appear as a witness at the trial, but according to his deposition, part of which was introduced into evidence, he was traveling approximately 20 miles per hour at the time of the accident.

We discuss particular factual situations later as we consider the errors relied on for reversal. Plaintiff argues the trial court erred in the following four particulars:

(1) In refusing to permit expert opinion testimony concerning speed based exclusively on pictures of the vehicles and of the accident scene;

(2) In refusing to find Burlington Yellow Cab Co., Inc. negligent for failing to provide a seat belt for plaintiff's safety;

(3) In refusing to find the absence of a seat belt was a proximate cause of plaintiff's injuries;

(4) In applying an incorrect rule of proximate cause to the facts of this case.

The last three arguments all relate to the seat belt issue, and we consider them together before discussing the question of the exclusion of testimony as to speed.

I. Plaintiff alleges the failure to provide seat belts was negligence which was a proximate cause of her injuries (though not a proximate cause of the accident) entitling her to judgment against the cab company.

It is apparent the absence of seat belts had no bearing upon the occurrence of the accident itself and could not have been a proximate cause thereof. Plaintiff argues, however, that seat belts would have minimized her injuries, and she produced expert testimony to support her theory.

The effect on civil liability of a failure to furnish seat belts--or a failure to use those which are furnished--has received increased attention in recent years. Frequently the matter arises by way of a claim that one who fails to use available seat belts is guilty of contributory negligence as a matter of law. Such claims have been almost invariably denied. While we recognize the standard of care by which the conduct of a common carrier is measured is higher than that of a passenger in an automobile, we believe the cases involving the failure to use seat belts are of interest here. The courts have generally held the question of contributory negligence under such circumstances is one to be determined by the trier of facts and is not to be decided as a matter of law. Barry v. Coca Cola Company, 99 N.Y.Super. 270 239 A.2d 273, 278; Kavanagh v. Butorac (Ind.App.Court), 221 N.E.2d 824, 831; Lipscomb v. Diamiani (Del.Superior Court), 226 A.2d 914, 918; Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626, 640; Annotation, 15 A.L.R.3d 1428.

In Mortensen v. Southern Pacific Company, 245 Cal.App.2d 241, 53 Cal.Rptr. 851, 853, the court held the failure of an employer to furnish its employee seat belts was not negligence as a matter of law under the Federal Employers' Liability Act, saying the question was for the jury.

In the instant case plaintiff introduced evidence that seat belts are a valuable safety device; that the cost of installation is negligible; and that effective July 1, 1966, seat belts were required in 1966 model (or newer) automobiles. See section 321.445, Code of Iowa. It is conceded this section did not require seat belts in the cab involved in this accident.

Robert Glenn, an Iowa Highway Patrolman, and Dr. George W. Brown (of whom we hear more later in this opinion) testified at length concerning the safety value of seat belts. Both expressed the opinion that plaintiff's injuries would not have been as serious had she worn one. Both gave statistics and referred to various studies and treatises showing seat belts generally are regarded as helpful in preventing or minimizing injuries in the event of a collision.

Almost identical testimony was considered in Mortensen v. Southern Pacific Co., supra, where a physicist and two highway patrolmen vividly described the effect of seat belts in reducing accident fatalities and minimizing injuries. But it was nevertheless held that the question of negligence was for jury determination.

Defendant cab company is a common carrier obligated to exercise a high degree of care for the safety of its passengers. Its duty stops just short of insuring their safety. Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 1139, 49 N.W.2d 501, 504; Doser v. Interstate Power Co., Iowa, 173 N.W.2d 556, 558. This duty requires a common carrier to provide and use the best machinery and appliances then known and in general practical use for the safety of passengers. 13 C.J.S. Carriers § 738, page 1389. However it need not adopt and use Every known safety device.

The defendant cab company was under no statutory duty to have seat belts in its cab at the time this accident occurred. We believe the issue of negligence for failing to provided such a safety device was properly determined as a question of fact and not as a matter of law. Therefore the trial court's finding, if supported by substantial evidence, is binding on us. Rule 344(f) (1), Rules of Civil Procedure.

However, plaintiff has another complaint concerning this matter. She says our decision on this point is not decisive because the trial court did not Consider the negligence of the cab company in failing to furnish seat belts and did not pass on the claim that this failure was a proximate cause of her Injuries as opposed to proximate cause of the Accident.

We do not believe the trial court's findings are open to this objection.

We believe the only fair conclusion is that the trial court determined liability rested with McIntosh alone under all the issues. If, as plaintiff now contends, the trial court overlooked specific findings on matters vital to plaintiff's cause, then plaintiff had an adequate remedy under rule 179, R.C.P. If plaintiff had requested an enlargement of the findings under that rule, we would not now be asked to assume the trial court ignored one of the important issues in the case, an issue which had been raised by the pleadings and upon which there was voluminous testimony. In the absence of such a request, the trial court's finding of negligence and sole proximate cause settles this question.

But plaintiff argues, even if this be true, the evidence is conclusive and uncontroverted that failure to provide seat belts was negligence which was a proximate cause of her injuries. She insists this is one of the exceptional cases where negligence and proximate cause are Not jury questions under rule 344(f)(10). She says we should hold as a matter of law both that defendant cab company was negligent and that such negligence was a proximate cause of her injuries.

This argument depends upon the force of the expert testimony introduced concerning seat belts and the beneficial effects of their use. It is claimed the trial court was bound by that evidence because defendants offered nothing to refute it; but this is not the law. The trial court was free to reject the expert testimony for two reasons. First, under rule 344(f)(17), R.C.P., a jury question is engendered even by undisputed facts if reasonable minds might draw different inferences from such facts. We do not believe the value of seat belts is so firmly established that reasonable persons could not draw different inferences from the testimony here. For instance, on cross-examination the highway patrolman admitted that some scientific and legal literature raises doubt about the efficacy of seat belts under some circumstances. See also comment in Barry v. Coca Cola Co., supra, 239 A.2d at page 278, that 'there are, at least, some arguments on the counterside that they (seat belts) are not as helpful as some may say.' We cannot say here that reasonable men could not draw different inferences from the testimony.

Secondly, expert opinion...