Vandello v. Allied Gas & Chemical Co.

• Decision Date: 15 August 1961
• Docket Number: No. 50304,50304
• Citation: 110 N.W.2d 232,252 Iowa 1313
• Parties: James E. VANDELLO, Administrator of the Estate of Harold C. Vandello, Deceased, Appellant, v. ALLIED GAS AND CHEMICAL COMPANY, an Iowa Corporation, and Gene Little, Appellees.
• Court: Iowa Supreme Court

Page 232

110 N.W.2d 232

252 Iowa 1313

James E. VANDELLO, Administrator of the Estate of Harold C. Vandello, Deceased, Appellant, v. ALLIED GAS AND CHEMICAL COMPANY, an Iowa Corporation, and Gene Little, Appellees.

No. 50304.

Supreme Court of Iowa.

Aug. 15, 1961.

Bailey C. Webber, Ottumwa, for appellant.

Bray & McCoy, Oskaloosa, Gilmore, Dull & Keith, Ottumwa, for appellees.

HAYS, Justice.

This is an action for damages arising out of a collision between the car operated by plaintiff's decedent and truck owned by defendant company and operated by its employee, Little. Defendant filed a counterclaim for damages to its truck. Both claim and counterclaim were submitted to a jury which failed to reach a verdict and was discharged. Thereafter, each party moved for a judgment notwithstanding the failure of the jury to reach a verdict. Each motion was sustained upon the ground of contributory negligence as a matter of law and each party has appealed.

Plaintiff, hereafter called Appellant, requested an instruction be given to the jury as to the applicability of the no-eyewitness rule which was rufused by the trial court and nowhere in the instructions or in the ruling upon Appellee's motion is the rule mentioned. Appellant's assigned errors, two in number, are directed at this proposition.

I. The no-eyewitness rule, briefly stated, is that where it is encumbent for the plaintiff in an action for damages predicated upon defendant's negligence, to plead and prove his freedom from contributory negligence, which is the Iowa requirement, and there is no eyewitness to the mishap, and no obtainable direct evidence as to what decedent did or failed to do by way of precaution at or immediately prior to the time of his injury, there is an inference he was in the exercise of ordinary care and prudence for his own safety. Generally, such an inference poses a jury question upon the issue of freedom from contributory negligence. Discussion by Bruce M. Snell, Jr., in Iowa Law Review, Vol. 43, page 57; Lingle v. Minneapolis & St. L. Ry. Co., 251 Iowa 1183, 104 N.W.2d 467 and cases cited.

II. It involves primarily a fact question and, in the instant case, requires a somewhat detailed analysis of the record.

The mishap occurred about 1 P.M., October 31, 1959, on Highway 63, known in the record as Madison Avenue, in the city of Ottumwa, Iowa. This Avenue runs north and south; has an 18 foot paved slab with 10 foot dirt shoulders. The day was clear, the pavement dry but the shoulders were muddy. Silk Avenue approaches Madison from the west with a 'T' intersection. About 170 feet on north South Street approaches Madison from the east with a 'T' intersection. Claudia's Beauty Shop is located at the northwest corner of the intersection of Madison and Silk and faces south on Silk.

On the date in question James E. Vandello, the deceased, accompanied by his wife, drove to the entrance to the Beauty Parlor, on Silk, where his wife left the car and started up the walk to the Beauty Parlor. Vandello backed his car east and south from Silk to Madison, headed north and was moving about 10 miles an hour. Mrs. Vandello testified she found the door to the Beauty Shop locked and went east on to Madison Avenue to contact her husband. At this time Mrs. Chesser, operator of the Beauty Shop called to her and she turned and went back to the Shop. She states she is sure her husband's car was entirely on the pavement and in the east lane of travel. She heard the crash but did not see the truck, which was coming from the south, until after the collision.

Mrs. Chesser states the last time she saw decedent's car, it was sitting on the east shoulder of Madison Avenue facing north. She did not see the truck approaching from the south and heard only the crash. She did not see the collision.

Melvin Funk states he was standing a little south of Silk and west of Madison, facing northeast at the time decedent backed his car from Silk onto Madison, saw Mrs. Vandello approach the car on Madison and then turn back toward the Beauty Shop. The car was crossing Silk at about 10 miles per hour. He says 'as near as I could tell' the decedent's car was off onto the shoulder. He then observed the truck as it reached Silk and saw it turn to the west lane to pass decedent's car. It appeared the front end of the truck was ahead of the car. He did not see the car at the time of the crash. He says 'so far as I could see it,' (the car) was still on the shoulder the last time he saw it.

Joseph McCarthy was driving north into Ottumwa and was about two blocks back of the truck, which was travelling in the east lane. He observed the brake lights of the trailer go on and swerve to the center of the road. Up to that time he observed no other vehicles on the highway or on the east shoulder. On cross-examination it developed that in a prior statement he stated he saw a car turn directly into the path of the truck. He says it was his impression that he saw a car coming from the north turn to the left in front of the truck. He says he could not tell where the car came from.

Richard D. Smith, a Highway Patrolman, who arrived at the scene of the collision about 1:15 P.M., states he found debris on the paving just north of the Silk intersection and on Madison. He states the car was hit on the trunk by the right front side of the truck. There were tire marks on the trunk of the car. He also states that he saw no marks leading from the shoulder onto the highway in the vicinity of the debris found on the pavement. The cars came to rest near South Street.

John Zessiger was driving south on Madison and was several blocks to the north at the time of the collision. He states he saw the truck swerve to the left and start to weave and watched it until it crashed. He did not see decedent's car until after the ambulance arrived.

Gene Little, driver of the truck, states he was driving his truck, loaded with propane gas and weighing 63,000 pounds, north on Madison and as he came to Silk Avenue he saw no other vehicle. Decedent's car was about 25 feet ahead when he first saw it and it was headed northwest, turning to the right, going north, pulling onto the highway into the east lane. He states the collision happened almost instantly after he saw it. He states he was driving 35 miles per hour although there is testimony placing his speed at 55 to 60 miles per hour.

While numerous other witnesses testified none of them observed the collision.

III. As to just what period of time and under what circumstances preceding the accident, one must have been an observer to be an eyewitness, such as to bar the application of the rule, is not readily susceptible of any hard and set rule but rather must be determined in each case in the light of its own factual situation. Van Wie v. United States, D.C.N.D.Iowa, 77 F.Supp. 22.

IV. We have consistently held that where a witness saw decedent but an instant before the mishap, such witness is not an eyewitness...