Townsend v. Armstrong
| Decision Date | 02 April 1935 |
| Docket Number | 42716. |
| Parties | TOWNSEND v. ARMSTRONG.[a1] |
| Court | Iowa Supreme Court |
Appeal from District Court, Decatur County; Homer A. Fuller, Judge.
An action on a death claim growing out of an automobile accident. From a judgment entered on the verdict of the jury in favor of the defendant, plaintiff appeals.
Reversed.
G. F Hoffman, of Leon, and O. M. Slaymaker, R. E. Killmar, and D D. Slaymaker, all of Osceola, for appellant.
Gibson & Stewart, of Des Moines, and McGinnis & McGinnis, of Leon for appellee.
The plaintiff in her petition specifies twenty-one grounds of negligence against the defendant. At the close of plaintiff's testimony, the defendant filed a motion to strike from the petition of the plaintiff certain specifications of negligence which will be later, partially, at least, set out. This kind of motion is unknown to the practice in Iowa; the usual course being, under the circumstances, to ask the court to withdraw issues from the jury on which there is no evidence or which fail to state a legal ground of negligence, and this course should be followed. However, as no objection was made to the consideration of such motion by the plaintiff and the same result would follow as though a proper motion had been made, the ruling on the motion, if erroneous, cannot be said to be prejudicial error because of the form in which the motion was made.
One of the grounds on which this motion was based and made applicable to several of the alleged specifications of negligence was that it pleaded a conclusion. The rule under our practice is that a pleader must plead the ultimate facts in the case. He cannot plead conclusions by themselves. A good pleading consists of the statement of the ultimate facts in the case, and, when so stated, the pleader has a right to plead his conclusion based upon those facts. So, in a case of the character of the case at bar, a pleading which simply alleges that the defendant was negligent, or that the act he did was negligently done, without more (except where the doctrine of res ipsa loquitur is relied on), is not a good pleading because it is a conclusion; but, if it sets out and specifies the facts to support such conclusion, it is a good pleading.
The first ground of the motion to strike was directed at the following words in the plaintiff's petition: " That the defendant was driving and operating his automobile at said time and place that he struck said decedent, at a high and dangerous rate of speed, to wit, approximately fifty or sixty miles an hour," for the reason that the same is a plea of conclusion and there is no evidence introduced on behalf of the plaintiff to substantiate the same. This ground of the motion was sustained by the court, and we think rightfully so, because there was no evidence to support it. In addition to this, instruction No. 10 gave the plaintiff the benefit of such allegation.
The second part of the petition struck at reads as follows: " That the said defendant was careless and negligent in that he failed to reduce the speed of his said automobile to a reasonable and proper speed, in view of all of the facts and circumstances existing at the time and place that he struck and injured said decedent." While the court sustained the motion as to this ground, we think that there was no prejudicial error here because of the provisions of section 5029 of the Code and instruction No. 9 given in the case, so that, the court having instructed on this proposition, the plaintiff cannot complain.
The next specification struck at was: " That said defendant failed and neglected to sound the horn on his said automobile or to give any other signal as his said automobile approached said decedent, and failed to give any signal within a reasonable distance prior thereto." This was properly stricken on the ground that there was no evidence to support it.
The tenth allegation of negligence was: " That the defendant failed to keep a proper lookout." While this was stricken, the court instructed on this proposition, and hence there was no error of which plaintiff could complain.
At this point in the proceedings the court said: " Maybe we can shorten this procedure. I am going to submit ground seventeenth (failure to keep proper lookout), in addition to the three other grounds I have already indicated. * * * You can make the same motion apply to all the other grounds.
The court, on the final submission of the case, submitted four particular grounds of negligence.
Another allegation stricken was that the lights on defendant's car were defective and failed to throw the lights the legal distance. There was no evidence in the case at the time the motion was made to sustain this allegation.
Another allegation which was stricken was that defendant failed to drive his automobile on the traveled part of the highway, and that the defendant drove outside and to the north of the traveled portion of said highway. To understand the ruling on this, we turn to the evidence.
The east and west highway, known as No 3, at the point in question is on a grade some 6 feet above the natural surface of the ground. The total width of the grade is about 35 feet. In the center the road is constructed of crushed limestone rock, about 24 feet in width. On the north side of this highway, at the point where the accident occurred, is a dirt shoulder 9 or 10 feet wide, and the jury might have found from the plaintiff's evidence that the Henderson car (the model T Ford) was standing on this dirt shoulder at the time the accident occurred.
Adverting now to the stricken allegation, it would appear that said allegation should not have been stricken. If the jury could (as it could) find from the record that the Henderson car was not on the macadamized part of the highway, but was standing on the dirt berm to the north thereof, and the defendant therefore drove off the macadamized part of the highway and killed the deceased by so doing, this certainly would be negligence for which he would be accountable. In the case of Hanson v. Manning, 213 Iowa, 625, 239 N.W. 793, one of the allegations of negligence set out in the petition was that the defendant negligently drove outside of the traveled portion of the highway without giving signal of his approach and without leaving sufficient space for plaintiff to stand in safety; that defendant negligently operated his automobile without due regard to the rights of the plaintiff in the highway, and drove his car through plaintiff's place of safety without sufficient opportunity for plaintiff to escape. In that case the court failed to submit these allegations of negligence, and we reversed the case and said: " The court should have submitted to the jury plaintiff's pleaded cause of action as including the specifications withdrawn hereinbefore set out." We think these allegations of negligence should not have been stricken, as there was evidence in the record to support the same.
In view of the fact of a reversal of this case, we give attention to some other alleged errors. To an understanding of the same, it is necessary to set out some of the facts in the case.
This accident occurred at about 7 p. m. on September 8, 1933. Highway No. 3, as has been above described, runs east and west. About 150 feet east of the point where the accident occurred is a north and south highway, crossing No. 3 at approximately right angles. Lou Henderson was the owner of a model T Ford of the vintage of about 1920. It had no top. With him in that car were Charles Harp and Fred Townsend, the deceased. As they came from the north and neared highway No 3, their lights became defective and blinked, and, when they reached No. 3, they turned to the west and stopped to rectify the lights. Harp got out and went along the side of the front of the car to see if he could discover the " short" that caused the flickering of the lights. Under the evidence, the jury could have found that at the time of the accident there were no lights showing on the Henderson car. Henderson got out to the north side of the car, and Fred Townsend got out and went behind the car, facing to the west, and, with his arms and hands on the back of the seat, was standing there at the time he was struck by the car of the defendant coming from the east. Townsend was a guest...
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