Tyrrell v. Skelly Oil Co.

• Decision Date: 12 January 1937
• Docket Number: 43497.
• Citation: 270 N.W. 857,222 Iowa 1257
• Parties: TYRRELL v. SKELLY OIL CO. et al.
• Court: Iowa Supreme Court

270 N.W. 857

222 Iowa 1257

TYRRELL v. SKELLY OIL CO. et al.

No. 43497.

Supreme Court of Iowa.

January 12, 1937

Appeal from District Court, Johnson County; H. D. Evans, Judge.

Action for damages on account of personal injuries sustained when an automobile overturned. From judgment for plaintiff defendants have appealed.

Reversed.

Messer & Nolan, of Iowa City, for appellee.

Grimm Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for appellants.

RICHARDS, Chief Justice.

On August 17, 1934, plaintiff was traveling westerly on a paved highway, as a gratuitous guest in a Plymouth automobile owned and being drived by one Powers. When a point was reached seven miles west of Webster City, the left rear wheel became detached. The car continued its course for a short distance and then, leaving the paving, turned over two or three times with resulting physical injuries to plaintiff for which she seeks damages in this action. The trial in the district court resulted in a verdict and judgment for plaintiff from which defendants have taken this appeal. Plaintiff's case is founded on the claim that negligence of defendants resulted in the wheel coming off the car and hence was the proximate cause of plaintiff's injuries. As defendants deny the sufficiency of the evidence to generate a jury question as to whether defendants were negligent, we will proceed first to summarize the salient matters of evidence relied on by plaintiff to establish such negligence.

It is conceded that at 8 or 8:30 p. m. on August 15, 1934, two days before the accident, Powers was driving this same automobile in Iowa City. On Jefferson street the left rear tire went flat. Powers parked the car upon the street. Not quite two blocks distant from the place of such parking, defendant Skelly Oil Company was operating a service station whereat defendant Du Pre was an employee. Soon after the car was parked, Powers directed Du Pre to repair the flat tire and to remove the two front wheel tires and replace them with new tires purchased by Powers from defendants as part of the transaction. The repair work and the retiring of the front wheels was all performed by Du Pre at the service station later during the same evening. Preliminary thereto, and in order to have the car at the station where the work could be done, Du Pre came to the Powers car, where parked, removed the left rear wheel on which was the flat tire, and substituted in its place the car's spare wheel that had an inflated tire. The car was so designed and constructed that each rear wheel, after being slipped on the hub, was then secured to the brake drum with five threaded lug bolts. There was an opening in the wheel for each bolt, and correspondingly, there was for each bolt a threaded hole in the brake drum into which the threaded end of the bolt was intended to be turned. These five sets of threads constituted the only device to avoid the wheel becoming detached in the operation of the car. The bolts were approximately seven-sixteenths of an inch in diameter and two and three-eighths inches in length, with a hexagonal head of larger diameter. Powers testified that Du Pre, in putting on the spare wheel before taking the car to the service station, screwed in one of the bolts with his fingers, then gave it a turn or so but not tight with his pliers, without using any wrench to tighten this bolt, and that Du Pre slipped four other bolts into their holes in the wheel but without turning them at all into the threads in the brake drum. Powers also testified that he asked Du Pre whether he was leaving the wheel that way, with only one bolt, and that Du Pre replied in substance that so doing would not hurt anything in taking the car just over to the service station. Powers' testimony respecting the turning of but one bolt and the conversation just mentioned is denied in Du Pre's testimony. Later in the evening Powers came to the service station. He testified that he was told by Du Pre that the car was ready to go. Powers drove the car from the station and during the night left it parked on a street in Iowa City. On the following morning, he drove the car to Ft. Dodge. During the forenoon of the day thereafter, he drove back to Iowa City, and in the afternoon started from Iowa City on the trip which ended seven miles west of Webster City, as above related. Following the accident, the wrecked car was lying on its top, south of the paving, and the detached left rear wheel had come to rest leaning against the fence north of the paving, and about forty or fifty feet west of the car's location. The wheel was rolled back to the car, and plaintiff's witnesses describe what they observed during the process of re-attaching the wheel. They say that, after the hub cap was removed, they found that there were either three or four lug bolts in the wheel. One of these was in such condition that it could not be turned into the threads in the brake drum and was discarded, and one of the three or four bolts was broken off. The bolts, except the broken one, were lying loose inside the space inclosed by the hub cap. Powers also testified that the wheel and tire which came off the car at time of the accident was the wheel and tire that was placed on the left rear axle of the car by Mr. Du Pre on the evening of August 15, 1934. It was Du Pre who did all the work on the car. Whether witness Powers was intending to identify the wheel and tire that came off as the one that was placed on the left rear axle by Du Pre at Jefferson street or at the service station does not appear entirely clear as he includes the whole evening in his description of the wheel that was put on the car. This is rendered the more indefinite in another portion of the testimony of the same witness, wherein he stated he did not know whether the spare tire that was put on before the car was taken to the...