Tinley v. Chambers Implement Co., 41251.

• Decision Date: 20 June 1933
• Docket Number: No. 41251.,41251.
• Citation: 216 Iowa 458,249 N.W. 390
• Parties: TINLEY v. CHAMBERS IMPLEMENT CO. et al.
• Court: Iowa Supreme Court

216 Iowa 458

249 N.W. 390

TINLEY

v.CHAMBERS IMPLEMENT CO. et al.

No. 41251.

Supreme Court of Iowa.

June 20, 1933.

Appeal from District Court, Pottawattamie County; J. S. Dewell, Judge.

This is an action in damages for the death of John Powell resulting from an automobile collision between a car driven by him and a truck owned by the defendants and driven by one of their employees. The jury returned a verdict for plaintiff and a judgment was entered thereon. Defendants appeal.

Affirmed.

Superseding opinion, 243 N. W. 381.Kimball, Peterson, Smith & Peterson, A. G. Kistle, and H. C. Churchman, all of Council Bluffs, for appellants.

Tinley, Mitchell, Ross & Mitchell, of Council Bluffs, for appellee.

KINTZINGER, Justice.

This case was originally before this court and a reversing opinion rendered in Tinley v. Chambers Implement Co. et al., 243 N. W. 381. A rehearing was granted and that opinion is hereby withdrawn.

The only question raised in this case is whether or not the deceased was guilty of contributory negligence as a matter of law.

The collision occurred after dark November 11, 1930, on highway No. 32, at or near the intersection of said highway with a private road entering thereon from the home of one Koester. Deceased left the Koester home at night and was driving to his own home some distance east on highway No. 32.

Highway No. 32 runs east and west and is 18 feet wide with a 5-foot shoulder on each side. The Koester home is about 233 feet north of highway No. 32 and the private drive therefrom to the highway runs north and south. At the south end of the driveway it spreads out in a fan shape at its junction with No. 32. The private driveway is generally about 15 feet wide, and 28 feet wide where it joins with No. 32.

The evidence shows that an automobile, traveling on any part of the private drive from the Koester home to the highway, is visible to persons on highway No. 32 for a distance of at least 1,000 feet east of the intersection. The headlights on both the car and the truck were lit. There was also a spotlight on the truck. The truck was traveling from 40 to 50 miles an hour. The deceased at the time he was driving his Ford coupé onto the paving was traveling about 5 miles an hour.

Appellants contend that the deceased drove his car onto the paving without stopping, came directly into the path of the on-coming truck, and was struck by the truck on the intersection while on the north side of the pavement. Appellants' contention is supported by the testimony of the driver of the truck and the testimony of a witness who was driving a car a few hundred feet behind the truck.

The deceased did not stop before entering the paving, but the appellee contends that he drove across to the south half of the paving, had turned his car easterly thereon, and was 40 or 50 feet east of the intersection at the time of the collision.

As a result of the collision the decedent's car landed north of the pavement and about 10 feet west of the Koester driveway. The truck stopped about 200 feet west of the driveway on the south side of the pavement. Powell's body was found about 60 feet west of the intersection with blood all around his head. One of the vital questions in the case was the location of the cars at the time of the impact. The witness Koester saw the collision from the window of the southeast bedroom of his home. He testified that he saw the deceased driving his car when he got almost on the highway. He testified “he (Powell) went up the grade in low gear. I judge he was going five to seven miles an hour. I was watching the highway as he drove onto that highway. He drove straight out on the pavement. I noticed the lights of the truck coming from the east. I next saw him on the pavement when he was about fifty feet from the truck. He was driving east on the highway. After I saw the truck coming west I continued to watch the truck come on. As it got within one hundred feet of where they collided he seemed to throw off to the south and kept going off until the collision. John Powell was about forty feet east of the driveway. I could see the lights on his car shining ahead. There was a big flash as though there was an explosion, glass flying all over. Before the collision the lights of that truck were going west and possibly a little south. My brother and I ran down the road with a lantern. We saw an object lying on the south side of the highway about 35 or 40 feet east of the driveway and my brother said ‘is that a body there’ and I said ‘no that is a part of the car.’ As we went by with a lantern it looked like a door of the car. Later we found the object that was lying forty feet east of the highway was the door of John's (decedent) car. I then went back to see if John was in the car. The truck was lying about the middle of the south side of the highway. John's car was just west of the driveway about 10 feet. We found John laying there on the north side of the road about 60 feet from the driveway. He was unconscious, there was blood all around his head. He never regained consciousness. The next morning we went down to the road and inspected the marks on the road. There were marks east of the driveway-abrasions. I found one rather deep mark about four feet long, another one just slightly smaller on the highway south and east of the driveway. The next morning I saw some scratches on the highway. There was still some glass mostly to the south about the middle of the south half of the highway, about 35 feet east of the driveway. There were scratches and marks on the pavement. About directly south of the driveway, possibly a little east, there was a dark black mark about 3 feet from the south side of the highway about four inches wide. It looked like burnt rubber marks. These black marks on the highway were about 40 or 50 feet long and ended about 40 feet west of the driveway and on the north side of the highway. I saw the truck the next morning. On the left hand side the bolts or plates were sheared off all the way along, and paint was off the side of the truck. The front bumper was broken off on the right hand side. It was fastened on the frame of the car with rivets, and they were sheared off, and the wheel was shoved back and injured on that side. On the Powell car the radiator was pushed back over the engine and to the left, and the left part of the spindle or axle was bent back a little and the radius rod was broke loose from the engine, and the back part of the front end was still on but the back part was broken loose. There were no dents on the left side of the Powell car from the running board back. When I first saw the truck, as it came west on highway No. 32 in my judgment it was about 260 feet east from the driveway. At that time my best judgment is that Mr. Powell's front wheels were right on the paving or at the paving, I couldn't tell. At the time the collision occurred, I judge Powell's car was about 35 feet east of the driveway, possibly 40 feet. As it came down the road the truck gave way to its left to the south side of the road and it seemed as though at that time it picked up speed. Mr. Powell's body was found about 115 feet from the place where the collision occurred. At the time the two cars came together Powell's car wasn't still turning. I could see that plainly. Just before the crash I could see the outline of the body of the Ford because of the light that was thrown upon it. The next time I saw the lights of those cars it (Powell's car) was about 35 feet east of the driveway. The...