Weppler v. Smith

Citation108 N.W.2d 247,252 Iowa 679
Decision Date07 March 1961
Docket NumberNo. 50246,50246
PartiesNora M. WEPPLER, Executrix of the Estate of Ira C. Weppler, Deceased, Appellant, v. Otis SMITH and Larry Smith, Appellees.
CourtUnited States State Supreme Court of Iowa

Jones, Cambridge & Carl, and E. S. Holton, Atlantic, for appellant.

E. S. White, Carroll, and Harold Dekay, Atlantic, for appellees.

PETERSON, Justice.

This is an action by Norma M. Weppler as executrix of the estate of her husband, claiming damages from Otis and Larry Smith for his death. The case involved an automobile accident in Cass County about eight miles south of Atlantic at the junction of U. S. Highway 71 and Highway 414. The accident happened on June 5, 1959, at approximately 6:30 p. m.

Mr. Weppler was a farmer living two miles west and about one-half mile south of what is known as the Fletcher Store. On the evening of June 5th he started to drive to the store to get some feed. He drove a 1957 Ford automobile.

Otis Smith was the owner of a 1958 Chevrolet. The defendant Larry Smith was his sixteen year old son, driver of the car, with his father's consent. Three boys, Larry Smith, Guy Smith, fifteen years old, and Gary Bannick, fourteen years old, had entered into an arrangement to go in Mr. Smith's car to Essex, to attend the wedding of a Wiota high school coach on the evening of June 5th. Larry first picked up Gary at Wiota. He then drove to the farm home of Guy Smith and picked him up. Guy was sitting in the front seat with Larry, and Gary was sitting in the back seat. The testimony of the three boys was taken by plaintiff's counsel in deposition form about ten days before the trial. Plaintiff offered the depositions in evidence. The trial court referred to the evidence of the three boys in its ruling on motion for directed verdict. Counsel for defendants in oral argument stated he was agreeable to the use of the contents of the depositions in our consideration of the case.

Larry testified they were driving south on Highway No. 71 at a rate of from fifty to sixty miles an hour. He stated that as they approached the Fletcher Store he slowed down to forty-five miles an hour.

As Mr. Weppler drove east on Highway 414 the physical evidence shows that after he had crossed Highway 71, the Smith car came across the Highway and struck Mr. Weppler's car broadside. It pushed the car about 40', throwing Mr. Weppler out of the car and causing his death.

Outside of Mrs. Weppler's testimony as to her being appointed executrix, and as to the details of Mr. Weppler leaving home on the evening of June 5th, the only witnesses proffered by plaintiff were Mr. Tom McDermott, the proprietor of the Fletcher Store and Glen Green, a member of the Iowa Highway Patrol, living at Atlantic.

Mr. McDermott testified that his store was closed and he and his family were in the back yard having a picnic. He heard the blowing of a horn and immediately thereafter a crash of cars. He rushed to the front of the store where he found Mr. Weppler's Ford facing toward the northwest near the store. Mr. Weppler was lying a few feet from the car close to the front of the store. The Smith car was facing toward the southwest. Two of the boys were in the car, but Gary Bannick had been thrown out and was sitting beside the car.

The location of the impact and crash of the cars can best be shown by the testimony of Mr. McDermott. He stated: 'I examined Highway 71 following the accident, immediately after the accident and there was no debris on it. There wasn't any broken glass out on Highway 71 to my knowledge. There was debris spread all around my driveway and from my driveway to the shoulder, from the shoulder, the edge of the pavement, toward my building. I observed on my driveway broken glass, pieces of chrome, hub caps, dirt, oil all those things lying there that evening.'

Mr. Green arrived about fifteen minutes after the accident. He testified that he and Mr. McDermott jointly took measurements as to the point of impact and as to the skidding. He stated there was a gouge mark on the east edge of Highway 71 pavement. It looked like it had been made by some very hard object. He stated that when he and Mr. McDermott measured the distance they found that the length of the skid mark from the east edge of the pavement to the Weppler automobile, as it came to rest, was 41'3"'. He also testified that on the county road as it ran east of the paving and 50' north from the gouge mark appeared some scuff marks in the gravel.

Mr. Green's statement as to the point of impact can best be shown by his testimony: 'There was no debris around the intersection itself. We observed debris all over the filling station driveway and there was glass and dirt on the driveway. The glass was broken in the automobiles I observed there. None of the broken glass extended out to the highway that I observed. The broken glass was within the whole area scattered east up toward the building. No part of the skid mark of 41'3"' appeared on the paved portion of Highway 71.'

Gary Bannick in the back seat of the car testified that he had no recollection of seeing the Weppler car. He testified he blacked out. He was suffering from retrograde amnesia. He had a slight brain concussion and was taken to the hospital. The accident happened on Friday and he testified he did not know anybody until the following Tuesday.

Guy Smith testified that he was sitting in the front seat with Larry, but that he was partly turned around looking at Larry and Gary and was not looking toward the highway in front of the car. He did not see the Weppler car until they were within ten or fifteen feet away. He stated he did not know where the Smith car was at that time. The impact occurred within a split second after he saw the car. He stated it happened so quickly that he could not tell whether they were on the east or west side of the road at the intersection. He also stated he blanked out temporarily.

Larry Smith testified he saw the car about 125' away. He states he did not put on his brakes. He was going about 45 miles an hour. He was unable to state where the Weppler car was with reference to Highway No. 71 as he was driving toward the intersection. He said he could not tell for sure whether the Weppler car was moving or standing still. He testified he was driving on the right-hand side of Highway No. 71 at all times. He did testify that after the wreck the two cars were over by the store east of the highway. He also testified Mr. Weppler had been thrown out of his car and was lying close to the store.

At the close of plaintiff's evidence motion for directed verdict was made on the ground that defendants were not guilty of any negligence and on the further ground that plaintiff's decedent was guilty of contributory negligence.

We agree with the able trial court as to its ruling concerning the question of negligence, when the court said: 'As to that part of defendants' motion for a directed verdict * * * which is directed to the specific grounds of negligence alleged in the petition, I am of the opinion that there is sufficient in the evidence as to the physical facts surrounding the accident to give rise to reasonable inferences as to some of the grounds of negligence alleged in the petition. I am therefore of the opinion that the portion of defendants' motion directed toward the specific grounds of negligence should be and it is hereby overruled.'

We also agree with the ruling of the trial court holding that plaintiff was not entitled to the benefit of the 'No eyewitness rule.'

I. Appellant alleges she is entitled to the benefit of the no eyewitness rule. The rule is that in the absence of eyewitnesses, or of any obtainable direct evidence as to what deceased did, or failed to do, by way of precaution, at or immediately before the injury, there arises a presumption or inference that he, prompted by natural instinct, was in the exercise of due care for his own safety. Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910; Spooner v. Wisecup, 227 Iowa 768, 288 N.W. 894; Low v. Ford Hopkins Co., 231 Iowa 251, 1 N.W.2d 95; Riedesel v. Koch, 241 Iowa 1313, 45 N.W.2d 225; Plumb v. Minneapolis & St. L. Ry. Co., 249 Iowa 1187, 91 N.W.2d 380.

Plaintiff's two witnesses, Mr. McDermott and Mr. Green, did not see the accident, and could only testify as to the physical facts. Gary Bannick suffered from retrograde amnesia, and could not testify as to what happened. Guy Smith saw the Weppler car when 10 to 15 feet away. He said he blacked out, so could add no information as to what happened. Larry Smith, the driver, saw the car when it was 125 feet away. He contends he proceeded south on the right-hand lane. Physical facts negative this verbal testimony, but obviously he was an eyewitness.

There is another obligation on plaintiff in connection with the no eyewitness rule. In Low v. Ford Hopkins Co., supra, we said: 'He was not entitled to the benefit of the no eyewitness rule unless it appeared there was no obtainable direct evidence of decedent's conduct at, and immediately prior to, the time of her fall.' [231 Iowa 251, 1 N.W.2d 97].

Plaintiff's counsel did not inquire of Mr. Green or Mr. McDermott on the witness stand as to whether they had discovered an eyewitness among the many people who promptly assembled. Larry Smith said he heard of an eyewitness, but could not remember his name. This lead could have been pursued. On the complete record we are not justified in invoking the benefit of the rule on plaintiff's behalf.

It is not necessary to invoke the rule to justify submission to the jury.

In the leading and oft cited case of Smith v. Darling & Co., 244 Iowa 133, 56 N.W.2d 47, defendant Sperfslage was an eyewitness. He and plaintiff's decedent were the only witnesses. Sperfslage's testimony was contrary to the circumstances as established by the physical facts. Even though this was true, we held in view of the fact that he could testify as an eyewitness, the case was taken...

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6 cases
  • Yost v. Miner
    • United States
    • Iowa Supreme Court
    • December 10, 1968
    ...from contributory negligence.' That holding was followed in Miller v. Stender, 251 Iowa 123, 131, 98 N.W.2d 338, and Weppler v. Smith, 252 Iowa 679, 688, 108 N.W.2d 247. Trial court erred in sustaining plaintiff's motion for judgment notwithstanding the verdict on the ground referred II. In......
  • Robeson v. Dilts, 53430
    • United States
    • Iowa Supreme Court
    • September 5, 1969
    ...proximate cause are taken from the jury and decided as questions of law. Rule 344(f), 10, Rules of Civil Procedure; Weppler v. Smith, 252 Iowa 679, 685, 108 N.W.2d 247, 251; Mazur v. Grantham, 255 Iowa 1292, 125 N.W.2d 807, 810; Grosjean v. Spencer, 258 Iowa 685, 688, 140 N.W.2d 139, 141; M......
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    • February 21, 1973
    ...be determined by the trier of facts. Rule 344(f)(10), Iowa R.Civ.P.; Robeson v. Dilts, 170 N.W.2d 408, 412 (Iowa); Weppler v. Smith, 252 Iowa 679, 686, 108 N.W.2d 247, 251; Leinen v. Boettger, 241 Iowa 910, 926, 44 N.W.2d 73, 82. 'And even where the facts are not in dispute, if reasonable m......
  • Weisbrod v. State
    • United States
    • Iowa Supreme Court
    • December 15, 1971
    ...be determined by the trier of facts. Rule 344(f)(10), Iowa R.Civ.P.; Robeson v. Dilts, 170 N.W.2d 408, 412 (Iowa); Weppler v. Smith, 252 Iowa 679, 686, 108 N.W.2d 247, 251; Leinen v. Boettger, 241 Iowa 910, 926, 44 N.W.2d 73, 82. And even where the facts are not in dispute, if reasonable mi......
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