Tissue v. Durin

• Decision Date: 14 February 1933
• Docket Number: No. 41554.,41554.
• Citation: 246 N.W. 806,216 Iowa 709
• Parties: TISSUE v. DURIN ET AL.
• Court: Iowa Supreme Court

216 Iowa 709

246 N.W. 806

TISSUE

v.DURIN ET AL.

No. 41554.

Supreme Court of Iowa.

Feb. 14, 1933.

Appeal from District Court, Linn County; John T. Moffit, Judge.

Action at law to recover damages for personal injuries received in an automobile accident. Final judgment was entered only against the defendants Al and George Durin, and they alone appeal.

Affirmed on condition.

KINDIG, C. J., and ALBERT, J., dissenting.Wheeler, Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for appellants.

Davis & Davis, of Iowa City, for appellee.

STEVENS, Justice.

Appellee in this action seeks to recover damages for personal injuries alleged to be due to the negligent operation of an automobile by appellants. The automobile, a Ford sedan, was owned by the appellant Al Durin, and was, at the time complained of, being operated by his son and coappellant, George Durin. Among the numerous propositions relied upon for reversal is the claimed insufficiency of the evidence to sustain the verdict. This necessitates a somewhat detailed statement of the record.

Early in the afternoon of November 11, 1930, George Durin, accompanied by Harold Secor, a fellow high school pupil, left Cedar Rapids over highway No. 161 to drive to Iowa City to attend a game of football. Upon reaching the outskirts of the city, Durin and Secor overtook Marvin Steele, Kermit Hayden, Howard Secor, and Russell Pendleton, with whom they were acquainted, and invited them to get in the back seat of the automobile and ride to their common destination. The young men accepted the invitation, and rode in the back seat of the car to Iowa City. For some distance north of that place, there is a decline in the highway to the south. The paved portion of the highway is eighteen feet in width, but is supplemented by a six-inch water drain, or something of similar character, on the right side, looking toward Iowa City. The shoulder on that side of the highway at the place material to this controversy is comparatively level, and four to five feet in width. As the car of appellants approached from the north, appellee and Catherine Keefe were walking north on the shoulder. The occupants of the car saw the young ladies, who were walking single file, with appellee in the lead, when they were a short distance away. Immediately before the car passed appellee and her companion, who were still walking on the shoulder, the rear right door of the car suddenly opened, struck appellee, and knocked her down. Her body was thrown into a ditch immediately adjacent to the outside of the shoulder while her feet rested thereon. Both appellee and her companion testified that they were walking on the outside of the shoulder about four feet from the edge of the pavement. Neither saw the car door open, and the first knowledge either of the girls had thereof was when appellee was struck. Catherine Keefe testified that she heard a scream, mingled with shouts or yoo-hoos from the car. A motorist later driving northward, seeing the plight of appellee, turned his car, and took her as quickly as possible to a hospital.

Appellant's version of what occurred was that Hayden, who occupied the right end of the rear side of the automobile, in some way not intended by him, caused the door to open, when it was caught and blown back by the wind just as the car came opposite appellee. Appellant's car continued on its way until it reached the foot of the hill, when, it is claimed by appellants, they turned around and drove toward the place of the accident. Before arriving at that point, they met the car in which appellee was being conveyed to the hospital.

Miss Keefe testified that she saw a hand reaching out to take hold of and shut the door, and that some of the occupants of the car were still shouting.

It will be observed from the foregoing statement that the range of the testimony is exceedingly narrow, and that much is lacking in definiteness. The witnesses for appellant testified that the car was being driven in the usual course of traffic, and that the right wheels were from a foot to a foot and a half from the edge of the pavement. The door of the automobile which struck appellee extended, when opened wide, twenty-nine inches from the body. It is manifest from this fact that one side or the other is in error as to their exact location at the time the injuries were inflicted. If appellee was walking four feet from the edge of the pavement and the west wheel of the automobile was eighteen inches on the other side thereof, the unfortunate affair could not have happened. If appellee was forty-eight inches from the edge of the pavement, the right wheels of the car must have been driven upon the shoulder. Conversely, if the right wheels of the car were eighteen inches from the opposite edge of the pavement, appellee must have been walking much nearer the line than the testimony in her behalf shows. The coincidence of the sudden opening of the door at the instant appellee was passing may not be without significance. It has at all times been the theory of appellee that the occupants of the car saw the young ladies walking along the highway, and, for the purpose of attracting their attention, the driver of the car diverted it from its usual course toward them and negligently drove it in such close proximity that, when the door was opened for the purpose of making some comment to the girls, it struck appellee, with the consequences stated.

[1][2][3] The sufficiency of the evidence tending to directly sustain the allegations of negligence relied upon by appellee may well be doubted. The ultimate inference permissible to the jury did not, however, depend wholly upon direct proof. The facts thus established were required to be analyzed and considered concurrently with all of the circumstances shown and throwing light thereon. The final conclusion must have been rested upon such fair and reasonable inferences as might be drawn from the record as a whole. It was the province of the jury, if sufficient was shown to justify submission of the evidence to it, to draw such inferences. To entitle appellee to recover, the burden rested upon her to establish the allegations of her petition by the preponderance of the evidence. The jury could not have properly inferred from anything in the record that the driver of the automobile, independent of any concerted action with one or more of the occupants of the car, swerved it toward the shoulder and negligently drove it in such close proximity to appellee as to cause the injuries. George Durin testified that he was not conscious that appellee had been struck until the car had proceeded some distance down the hill. Some, or all, of the occupants of the back seat testified that they saw appellee lying on the ground when the car was approximately twenty-five feet south of her. If the driver negligently changed the course of his car and drove it in such close proximity to appellee, as claimed by her, for the purpose, in common with his companions, of making comments to the young ladies, then, whether he caused the door to be opened or not is not material because the negligence, if any, in such case would be joint, and all who participated therein would be liable.

[4][5] The credibility of the witnesses was for the jury. Appellant's version of what occurred was obviously rejected by the jurors. If the jury believed that appellee occupied the place on the shoulder claimed by her in the testimony, then, as stated, the right wheels of the automobile must have been driven thereon. In no other way could appellee have been injured. The failure of the driver of the car to stop and render assistance to appellee, after he knew she had been injured, is entitled to some consideration in determining the credibility of his testimony. The reason given for not stopping was the extremely heavy condition of the traffic. The car could, however, have been driven upon the shoulder. The jury may also have believed the testimony of Miss Keefe, that some of the occupants of the car called or made comments as the parties approached each other. The analysis of, and proper inferences to be drawn from, this testimony was for the jury. If the car was, in fact, swerved to the right, and driven in such close proximity to appellee that the door was opened by Hayden as a part of a concerted plan to attract the attention of the young ladies, the jury could properly have found that the negligence charged was proven.

[6] The question is a close one, and perhaps the jury had some room for speculation; but this alone does not require that the verdict be set aside. On the record as a whole, the court is of the opinion that the verdict is not so clearly contrary to the evidence as to justify a finding, as a matter of law, that the evidence was insufficient to sustain the necessary elements of appellee's...