Vandell v. Roewe

• Citation: 6 N.W.2d 295,232 Iowa 896
• Decision Date: 24 November 1942
• Docket Number: 46047.
• Parties: VANDELL v. ROEWE et al.
• Court: United States State Supreme Court of Iowa

6 N.W.2d 295

232 Iowa 896

VANDELL v. ROEWE et al.

No. 46047.

Supreme Court of Iowa

November 24, 1942

E. E. Poston, of Corydon, and A. C. Carmichael, of Pocahontas, for appellant.

Hallagan Fountain, Steward & Cless, of Des Moines, and Gilchrist & Gilchrist, of Laurens, for appellees.

MILLER Justice.

Plaintiff is the administrator of the estate of Dwight W. Vandell deceased. His petition asserts that death resulted June 12 1940, by reason of injuries received on May 1, 1940, arising out of an automobile accident; deceased was a guest in the automobile of defendant, Fred W. Roewe, which was being driven by defendant, Henry Roewe, in reckless and wanton disregard for the safety of decedent; the collision occurred southeast of Laurens, Iowa, on a county road, near a railroad crossing; defendant was driving on the left hand side of the road at an excessive rate of speed, exceeding 60 miles per hour; he saw the lights of an approaching car and failed to yield one half of the traveled portion of the road. Defendants' answer included a general denial of all allegations of recklessness. Trial was had to a jury resulting in a directed verdict for defendants at the close of plaintiff's evidence. Plaintiff appeals, asserting five assignments of error.

I. Plaintiff's first assignment of error complains of the sustaining of objections to questions propounded to Harry O. Brown, a sergeant of the State Highway Patrol, whereby inquiry was made as to statements by defendant, Henry Roewe, to Brown while Brown was investigating the accident in his official capacity. The objection was that the statements were confidential and privileged under the statute. Section 5020.11, Code 1939. The ruling was proper. McBride v. Stewart, 227 Iowa 1273, 1277, 290 N.W. 700. Error is also assigned in this division for the sustaining of objection to a question whereby Brown was asked his opinion as to what he thought would be a safe rate of speed for one to drive over the crossing. The ruling appears to have been proper. Roberts v. Koons, 230 Iowa 92, 95, 296 N.W. 811. In any event, there was no offer of proof and prejudice will not be presumed. Pearson v. Butts, 224 Iowa 376, 388, 276 N.W. 65.

II. The second assignment of error complains of the sustaining of objections to questions propounded to plaintiff whereby inquiry was made regarding a conversation about a possible settlement of plaintiff's claim by defendants' insurance company. Only such part of the conversation as was relevant, competent and material to the issues being tried could be admitted. Kuhn v. Kjose, 216 Iowa 36, 38, 248 N.W. 230; Rutherford v. Gilchrist, 218 Iowa 1169, 266 N.W. 516. The record is not clear as to the offer of this testimony. The only conclusion we can come to is that it was offered in bulk. Since some of the testimony was clearly improper and subject to the objections made thereto, the offer as made was properly refused. Hidy v. Murray, 101 Iowa 65, 69, 69 N.W. 1138; Flam v. Lee, 116 Iowa 289, 297, 90 N.W. 70, 93 Am.St.Rep. 242; Mosnat v. Chicago & N. W. Ry. Co., 114 Iowa 151, 152, 86 N.W. 297; Allen v. Travelers' Protective Ass'n, 163 Iowa 217, 226, 143 N.W. 574, 48 L.R.A.,N.S. 600.

III. The third assignment of error complains of the sustaining of objection to a question whereby Sergeant Brown was asked to repeat what Robert Maher said to Brown in the presence of Henry Roewe as to the speed of the car. The objection was that it called for hearsay testimony. Plaintiff contends that the testimony should have been admitted under the rule announced in Doherty v. Edwards, 227 Iowa 1264, 290 N.W. 672. We seriously doubt that proper foundation was laid to bring the case within that rule. However, there was no offer of proof and prejudice will not be presumed. Pearson v. Butts, supra.

IV. Plaintiff's fourth and fifth assignments of error challenge the ruling on defendants' motion for a directed verdict, the claim being that the jury should have been permitted to determine whether Henry Roewe was reckless at the time of the collision. We find no merit in the contention.

Plaintiff's evidence showed that the collision occurred near a railroad crossing, the position of the cars after the accident and the damage done to the cars. The front end of each car was badly damaged, indicating a head-on collision. Defendants' car had been traveling south and stopped headed south on the east side of the road north of the crossing. The other car, the Hurley car, had been traveling north and stopped on the tracks, headed north, on the east side of the road. Mrs. Hurley testified that her husband was driving around 30 miles an hour with his lights on; when they came to the railroad track, she saw a light and that was all she remembered. It was about 9 P.M. Her husband did not survive the accident. Merle Sears testified that Henry Roewe stated he was going "about fifty" when he left the corner (which is 775 feet north of the crossing) and he applied his brakes and slowed down as he approached the crossing. Plaintiff testified that Henry Roewe told him that he "thought they were going around 35 miles an hour". Sergeant Brown investigated the scene of the accident and described it in detail. Various pictures were taken and are in evidence. But, aside from admissions of Henry Roewe as to his speed, there is no direct evidence as to his operation of the car. Plaintiff contends that reckless operation is shown by the physical facts found after the collision had occurred. We cannot agree.

The photographs in evidence show the crossing where the collision occurred. Brown testified, "There was a gradual incline and decline. As to its percentage, I just don't know, but it was quite an abrupt incline." O. P Malcolm made various measurements as to the change in elevation on both sides of the crossing and testified, "The drop of the surface of the roadway below the rails at the point 200 feet north of the crossing is four and...