Walker v. Sedrel

• Decision Date: 04 April 1967
• Docket Number: No. 52404,52404
• Citation: 149 N.W.2d 874,260 Iowa 625
• Parties: Larry G. WALKER, Appellee, v. Ivan SEDREL and Iowa Roofing Company, Appellants.
• Court: Iowa Supreme Court

Page 874

149 N.W.2d 874

260 Iowa 625

Larry G. WALKER, Appellee, v. Ivan SEDREL and Iowa Roofing Company, Appellants.

No. 52404.

Supreme Court of Iowa.

April 4, 1967.

Hansen, Wheatcraft & McClintock, Des Moines, for appellants.

Leo Oxberger and Joseph A. Billings, Des Moines, for appellee.

GARFIELD, Chief Justice.

This is a law action by Larry G. Walker to recover for personal injury was damage to his automobile from collision with a car owned by defendant Iowa Roofing Company, admittedly driven by defendant Ivan Sedrel with its consent. (See section 321.493, Code 1962). The case was later dismissed as to Sedrel. Trial resulted in judgment on jury verdict for plaintiff from which defendant-owner appeals.

The appeal presents the single ultimate question whether the trial court erred in refusing to instruct the jury the collision occurred in a residential district in the City of Des Moines, and plaintiff would be negligent if he was driving in excess of 25 miles per hour just before the collision. The refusal was placed on the ground there was no evidence to support a finding plaintiff was driving in excess of 25 miles per hour. It appears without dispute the collision occurred in a residential district with a speed limit of '25'.

The assigned error was properly preserved in the time and manner provided by Rule 196, Rules of Civil Procedure. Defendant's answer denies plaintiff's allegation he was free from contributory negligence and alleges he was contributorially negligent in driving over 25 miles per hour in a residential district and in some other respects.

Our answer to the above question depends on whether there is substantial evidence plaintiff was exceeding the stated speed limit. Naturally, defendant contends there is. Plaintiff argues any such finding would rest on speculation or conjecture or not more than a scintilla of evidence.

I. The collision occurred December 22, 1963, about 9:10 p.m. at the intersection of 7th and Day Streets. Plaintiff, a Des Moines fireman, was driving south on 7th, Sedrel west on Day. There was a stop sign facing westbound traffic at the northeast corner of the intersection. Some distance east of it there was another sign, reading 'Stop Ahead'. There was no stop sign facing southbound traffic on 7th, but it was a one-way (south) street. There is evidence Sedrel came into the intersection without stopping.

Three cars other than plaintiff's were also proceeding south on 7th. McLaughlin's car was in a lane west of the one in which plaintiff was driving. Schlueter was following plaintiff's car. Mrs. Edwards, a cousin of plaintiff, and her husband were three-quarters of a block to a block behind plaintiff's car at the time of collision. Plaintiff, Schlueter and the Edwards had driven south on 6th Avenue from a church to Laurel Street, they all turned west (right) on Laurel one block to 7th, then south (left) on 7th. Day Street parallels Laurel 370 feet to the south. McLaughlin also drove south on 6th, west on Laurel and turned south on 7th.

Witnesses at the trial were police officer Ness, who investigated the accident, Schlueter, Mrs. Edwards and plaintiff. Defendant produced no witnesses. We understand Sedrel was fatally injured in the collision. The most important direct testimony as to plaintiff's speed was given by Schlueter.

He testified he followed plaintiff's car on 6th Ave. from the church to Laurel; he estimated the speed of both cars at 25 miles per hour; he observed plaintiff's car on Laurel and 'estimated its speed to be slower than 25 because we made two corners'; when plaintiff turned west at 6th and Laurel the McLaughlin car was about two car lengths ahead of him; in turning south on 7th from Laurel, McLaughlin was on the outside (right) and made a wider turn; plaintiff took the inner, shorter turn and was approximately abreast of McLaughlin after they made the turn; as they proceeded south on 7th the Walker car got ahead of the McLaughlin car a car length or less.

Schlueter further said he, plaintiff and McLaughlin were all driving in the neighborhood of 25; 'Walker would have been just a little bit faster because he passed McLaughlin; * * * I observed the Walker car as it left the church and up to the point of impact. I did not at any time observe the Walker car exceeded the posted speed limit.'

This is from the cross-examination of Schlueter: 'Q. I believe you said when you went south on 7th you were going 25, you estimated McLaughlin was 25 and plaintiff had to be going a little faster because he passed McLaughlin? A. These are approximations, yes, sir. * * * As they proceeded south on 7th, I observed plaintiff's car passing the McLaughlin car. The whole process took the whole block. * * *

'Q. But you did observe plaintiff accelerate in order to pass the McLaughlin car? A. Yes, sir.

'Q. And at that time the McLaughlin car in your opinion was going approximately 25 miles an hour? A. Approximately, Yes. * * * At the time the Sedrel car was entering the intersection I was traveling approximately 25 miles per hour. I had been following plaintiff's car some two to four car lengths. Plaintiff did not widen that gap.' (Emphasis added).

On redirect examination Schlueter said: 'I observed plaintiff's car as it left the church and followed it along 6th and down 7th prior to the accident. I have no feeling he or I was exceeding the speed limit at any time.'

This is from the recross-examination: 'During the trip from the church to the point of the accident I didn't see plaintiff increasing his speed Excepting right as he approached Day Street and right prior to the accident when he was passing the McLaughlin car.' (Emphasis added).

On further redirect examination Schlueter said as they were pulling away from the area at 7th and Laurel, plaintiff was starting his passing. He was accelerating his speed in relation to the McLaughlin car at this point. He was at a greater speed. It took from this point nearly the length of the block before plaintiff passed him and at the point of impact plaintiff was just past the McLaughlin car.

Mrs. Edwards, who was furthest to the rear, testified she did not remember plaintiff passing the McLaughlin car and 'we were all going approximately the same speed, 25 miles per hour, because we stayed approximately the same distance apart. Plaintiff was approximately at the same speed.'

Plaintiff's own testimony is that as he was driving down 6th he was going 25 miles per hour; up Laurel it was considerably slower; that's the reason he passed the McLaughlin car; it had slowed down quite a bit; in turning from Laurel onto 7th he cut inside McLaughlin, went into the lane left of center and started to pass him; from the intersection of 7th and Laurel plaintiff accelerated his speed as he proceeded toward Day; he felt he was going the speed limit, 25 miles per hour; prior to the impact the maximum distance he was ahead of the McLaughlin car was a car length, if that.

On cross-examination plaintiff said he accelerated his speed from the corner of 7th and Laurel; at the time he was even with a car parked at the east curb, he was slightly ahead of the McLaughlin car. The front (south) end of the parked car was about 30 feet north of the north curb line of Day Street.

II. We have summarized, perhaps in unnecessary detail, the direct testimony as to plaintiff's speed just before the collision. However there is other important testimony, circumstantial in nature, which must be considered on the issue of plaintiff's speed.

Plaintiff testified on direct examination that when he first saw the Sedrel car approaching from the east he, plaintiff, was approximately 50 feet back (north) from the north curb on Day; 'the Sedrel car was about 20 feet or a car length behind the stop sign when I first observed it. I observed it up to the time I collided with it. It is my opinion it was traveling at a very high rate of speed. It did not stop at any time prior to the collision. My first reaction when I saw the Sedrel car was to apply my brakes, which I did.'

Plaintiff also said on direct excamination he estimated the stop sign was eight to ten feet east of the east curb on 7th Street. Exhibits offered by plaintiff indicate the sign was little, if any, further east of the stop sign than the distance plaintiff estimated. Schlueter expressed the opinion the Sedrel car was traveling at a high rate of speed.

Officer Ness who investigated the accident testified on direct examination the point of impact was 34 1/2 feet south of the north curb on Day and 13 1/2 feet west of the east curb on 7th; the point was marked by a pile of debris and skid marks in the intersection; plaintiff's car left 30 feet of brake or skid marks which led up to the pile of debris. On cross-examination the officer said 'The Sedrel car left no brake marks. * * * I concluded plaintiff's car probably skidded some 30 feet before it hit the Sedrel...