Weilbrenner v. Owens, No. 48672

CourtUnited States State Supreme Court of Iowa
Writing for the CourtGARFIELD
Citation68 N.W.2d 293,246 Iowa 580
Docket NumberNo. 48672
Decision Date08 February 1955
PartiesFred WEILBRENNER, Appellee, v. Junior OWENS and Swift & Company, Appellants.

Page 293

68 N.W.2d 293
246 Iowa 580
Fred WEILBRENNER, Appellee,
v.
Junior OWENS and Swift & Company, Appellants.
No. 48672.
Supreme Court of Iowa.
Feb. 8, 1955.

Page 294

Pryor, Hale, Plock, Riley & Jones, Burlington, for appellants.

Beckman & Ruther, Burlington, for appellee.

GARFIELD, Justice.

Defendants have appealed from a judgment against them on a jury verdict for $26,662 as damages due plaintiff from a collision between his automobile and a tractor-trailer owned by defendant Swift & Co., driven by its employee, defendant Owens. Defendants urge three grounds for reversal: (1) contributory negligence as a matter of law; (2) error in receiving certain evidence of tire marks; and (3) allowance of excessive damages. We hold no reversible error appears in any of these respects.

The collision occurred about 6:30 a. m., September 22, 1952, on a hill on U. S. Highway 61 between Burlington and Fort Madison. Plaintiff was driving his Chevrolet car south toward Fort Madison. Defendant Owens was driving the tractor-trailer north toward Burlington. Plaintiff was ascending a long hill where the pavement curved to his left. The 'semi' was descending the hill. Of course the pavement curved to Owens' right. There is much evidence that the front left side of the Chevrolet and the rear left side of the trailer collided on plaintiff's side of the highway.

I. Defendants moved for a directed verdict on the ground plaintiff was guilty of contributory negligence as a matter of law in failure (1) to keep a proper lookout and (2) to operate his car so as to avoid the collision, he having testified he observed the truck several hundred feet before the collision and it was approaching across the center line of the highway. The motion was properly overruled.

In considering this assigned error of course we view the evidence in the light most favorable to plaintiff. Worthington v. McDonald, Iowa, 68 N.W.2d 89.

The issue of plaintiff's freedom from contributory negligence is ordinarily one of fact for the jury except where, under the entire record, plaintiff's contributory negligence is so palpable that reasonable minds may fairly reach no other conclusion. Miller v. Griffith, Iowa, 66 N.W.2d 505, 507, and citations. See also Franzen v. Perlee, 243 Iowa 285, 288, 51 N.W.2d 478, 480. We have held many times that if there is any evidence tending to establish plaintiff's freedom from contributory negligence that issue is for the jury. Huffman v. King, [246 Iowa 583] 222 Iowa 150, 154, 268 N.W. 144, 147, and citations; Pierce v. Dencker, 229 Iowa 479, 484, 294 N.W. 781, 783; Smith v. Darling & Co., 244 Iowa 133, 144, 56 N.W.2d 47, 53.

Plaintiff and defendant Owens are the only eyewitnesses to the collision. Other witnesses regarding the collision testify mainly as to location and condition of the two vehicles and the presence of tire marks on the highway soon afterwards.

Page 295

Plaintiff says he first saw the truck when it was about 800 feet away but because of the curve in the highway and the trees he could not see whether it was on its right side of the center line until it was 200 to 400 feet away. He then saw it straddling the center line. He immediately turned to the right as far as he could, to within a foot of the guard rail which was about six feet west of the west edge of the pavement. Thus, according to plaintiff, when the collision occurred his car was entirely off the pavement except perhaps his left wheels.

Photographs of the scene of the collision, certified to us, clearly show rather heavy foliage on either side of the highway which would render it practically impossible for plaintiff to see the position of the truck with reference to the center line until the two vehicles were from 200 to 400 feet apart. A photograph showing tire marks and the testimony of five witnesses regarding the marks tend to corroborate plaintiff's claim the collision occurred well over on his side of the highway.

Plaintiff further testifies he was traveling 40 miles an hour when he started up the curve on the hill. Defendant Owens says plaintiff was not speeding. As soon as plaintiff discovered the truck straddling the center line he testifies he not only turned as far to the right as the presence of the guard rail permitted but he slowed down and watched the truck. 'I knew I couldn't make it to the end of the guard rail so I slowed down. I was over as far as I could get, and there I was. I was frightened.'

Under this record it would be a grave injustice to hold as a matter of law plaintiff failed to exercise ordinary care in keeping a proper lookout. The jury could correctly find plaintiff was vigilant in maintaining a lookout. Equally without merit is the contention plaintiff was contributorily negligent as a matter of law in failing to operate his car so as to avoid the collision. The argument that plaintiff should have stopped his car [246 Iowa 584] or further reduced its speed is proper jury argument but there is no rule of law which necessarily required plaintiff to do either. Young v. Jacobsen Brothers, 219 Iowa 483, 486, 258 N.W. 104; Jordan v. Schantz, 220 Iowa 1251, 1256, 264 N.W. 259, 261; Johnston v. Calvin, 232 Iowa 531, 534-535, 5 N.W.2d 840, 842; Coon v. Rieke, 232 Iowa 859, 864, 6 N.W.2d 309, 311 ('The duty of drivers approaching from opposite directions is not to stop but to * * * yield one-half of the traveled way').

Further, there is no assurance the collision would not have occurred if plaintiff had stopped his car or further reduced its speed. To have done so would not have changed the course of the truck. Thus it cannot be said as a matter of law plaintiff's conduct in these two respects contributed directly to the collision. See cases last above.

Defendants make much of one answer of plaintiff on cross-examination that the front end of his car collided with some part of the trailer. This answer should be considered with the rest of plaintiff's testimony and the entire record. Photographs of the car plainly show no damage to the front end of the automobile except to the extreme left end. Damage was mainly on the front part of the left side--from the rear door forward. The finding is warranted that the left front of the car collided with the left side of the trailer near its rear. Also that defendant Owens, after getting well over onto plaintiff's side of the highway, abruptly turned the tractor to its right in a belated but futile attempt to give plaintiff his half of the roadway and this caused the left rear of the trailer to collide with plaintiff's car.

This from Smith v. Darling & Co., supra, 244 Iowa 133, 142, 5l N.W.2d 47, 52, has some application here: 'But we think it is not fatal to plaintiff's case that the exact position of the two vehicles or the exact manner in which they collided is not shown provided there is substantial evidence

Page 296

the collision occurred on decedent's side of the highway.

'* * * 'The crux of the case is: Which vehicle was on the wrong side of the road at the time of impact?''

In considering the issue of plaintiff's freedom from contributory negligence it is well to keep in mind he had the right to assume, until he knew or in the exercise of ordinary care should have known otherwise, that Owens would yield to plaintiff[246 Iowa 585] his half of the roadway. Ordinarily a motorist may indulge this assumption so long as there is still time for the approaching motorist to safely turn onto his proper side of the road. Owens was required by statute to have the truck to his right of the center line only when meeting another traveler going in the opposite direction.

In support of what we have just said see Young v. Jacobsen Brothers, supra, 219 Iowa 483, 486, 258 N.W. 104; Jordan v. Schantz, supra, 220 Iowa 1251, 1256, 264 N.W. 259, 261; Jakeway v. Allen, 226 Iowa 13, 19, 282 N.W. 374; Anderson v. Kist, 229 Iowa 462, 468, 294 N.W. 726; Johnston v. Calvin, supra, 232 Iowa 531, 534-535, 5 N.W.2d 840, 842; Coon v. Rieke, supra, 232 Iowa 859, 864, 6 N.W.2d 309, 311. See also 2 Blashfield Cyc. Autom. Law and Practice, section 919, pages 92, et seq.; 60 C.J.S., Motor Vehicles, § 317. These authorities also fully support our conclusion the issue of plaintiff's freedom from contributory negligence was for the jury.

II. Error is assigned in the admission of testimony of the witness Shafer that skid marks appeared to him to lead to the point of impact and testimony of the witness Orr that the Swift truck made the skid marks. We find no reversible error in the receipt of this evidence. In the first place, the record bearing upon these assigned errors is unsatisfactory from defendants' standpoint.

Witnesses Shafer, Orr and Foster came from the south upon the scene of the collision very soon after it occurred. Shafer identified as a true representation of what he saw, exhibit 22, a large photograph of the highway at and near the place of collision. It shows what appear to be skid marks made by dual wheels leading from the east lane of the highway well over into the west lane. Shafer described broken glass on the left side of the Chevrolet and the tire marks he saw and placed an 'X' on exhibit 22 at the approximate location of plaintiff's car as he observed it at the west edge of the pavement. It is without...

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16 practice notes
  • Steinberg-Baum & Co. v. Countryman, STEINBERG-BAUM
    • United States
    • United States State Supreme Court of Iowa
    • May 9, 1956
    ...one provision. We have frequently taken judicial notice of the lessened value of the dollar in recent years. See Weilbrenner v. Owens, 246 Iowa 580, 68 N.W.2d 293, 298, and citations. In terms of purchasing power this fee is little if any higher than $10 would have been 25 years 'Where the ......
  • Barnard v. Cedar Rapids City Cab Co., No. 51555
    • United States
    • United States State Supreme Court of Iowa
    • March 9, 1965
    ...for a mistrial, the trial court may have overruled it because no timely objection had been made to the question, Weilbrenner v. Owens, 246 Iowa 580, 586, 68 N.W.2d 293, 296, there was then no indication by counsel the answer was in before he had time to object. Page 900 To counsel's stateme......
  • State v. Davis, No. 54755
    • United States
    • United States State Supreme Court of Iowa
    • April 13, 1972
    ...defendant's car must have been a more flash. In telling where this event occurred, Campbell was stating a fact. Weilbrenner v. Owens, 246 Iowa 580, 586, 68 N.W.2d 293, 297 ('Essentially the witness testified to a matter of observation'); Henriksen v. Crandic Stages, 216 Iowa 643, 246 N.W. 9......
  • Soreide v. Vilas & Co., No. 48951
    • United States
    • United States State Supreme Court of Iowa
    • July 26, 1956
    ...testimony is insufficient for submission to the jury of course we view it in the light most favorable to plaintiffs. Weilbrenner v. Owens, 246 Iowa 580, 582, 68 N.W.2d 293, 294, and citation; Hackman v. Beckwith, II. We disagree with the contention defendants stress that an inference may no......
  • Request a trial to view additional results
16 cases
  • Steinberg-Baum & Co. v. Countryman, STEINBERG-BAUM
    • United States
    • United States State Supreme Court of Iowa
    • May 9, 1956
    ...one provision. We have frequently taken judicial notice of the lessened value of the dollar in recent years. See Weilbrenner v. Owens, 246 Iowa 580, 68 N.W.2d 293, 298, and citations. In terms of purchasing power this fee is little if any higher than $10 would have been 25 years 'Where the ......
  • State v. Davis, 54755
    • United States
    • United States State Supreme Court of Iowa
    • April 13, 1972
    ...defendant's car must have been a more flash. In telling where this event occurred, Campbell was stating a fact. Weilbrenner v. Owens, 246 Iowa 580, 586, 68 N.W.2d 293, 297 ('Essentially the witness testified to a matter of observation'); Henriksen v. Crandic Stages, 216 Iowa 643, 246 N.W. 9......
  • Barnard v. Cedar Rapids City Cab Co., 51555
    • United States
    • United States State Supreme Court of Iowa
    • March 9, 1965
    ...for a mistrial, the trial court may have overruled it because no timely objection had been made to the question, Weilbrenner v. Owens, 246 Iowa 580, 586, 68 N.W.2d 293, 296, there was then no indication by counsel the answer was in before he had time to object. Page 900 To counsel's stateme......
  • Soreide v. Vilas & Co., 48951
    • United States
    • United States State Supreme Court of Iowa
    • July 26, 1956
    ...testimony is insufficient for submission to the jury of course we view it in the light most favorable to plaintiffs. Weilbrenner v. Owens, 246 Iowa 580, 582, 68 N.W.2d 293, 294, and citation; Hackman v. Beckwith, II. We disagree with the contention defendants stress that an inference may no......
  • Request a trial to view additional results

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