Wilson v. Oxborrow

• Court: Iowa Supreme Court
• Writing for the Court: RICHARDS, Justice.
• Citation: Wilson v. Oxborrow, 220 Iowa 1135, 264 N.W. 1 (Iowa 1935)
• Decision Date: 17 December 1935
• Docket Number: 43047.
• Parties: WILSON v. OXBORROW et al.

264 N.W. 1

220 Iowa 1135

WILSON v. OXBORROW et al.

No. 43047.

Supreme Court of Iowa.

December 17, 1935

Appeal from District Court, Polk County; O. S. Franklin, Judge.

Law action brought by plaintiff administrator to recover damages for the alleged wrongful death of his decedent. Plaintiff's case is based on the claim that defendant was guilty of recklessness in the operation of an automobile, in which decedent was riding as his guest, at the time of an automobile accident which resulted in the decedent's death. From judgment for plaintiff, defendant has taken this appeal.

Reversed.

Huebner & Huebner, of Des Moines, for appellant.

Parsons & Mills and Volney Diltz, all of Des Moines, for appellee.

Miller Miller & Miller, of Des Moines, for codefendants.

RICHARDS, Justice.

Primary highway No. 6, at a point a mile or more west of the town of Colfax, crosses a small waterway with a bridge about 41 1/2 feet in length. From the bridge the highway extends straight east for perhaps a mile. From the west end of the bridge the highway does not continue directly west, but begins to curve to the south. This curve extends to a point 162 feet west of the bridge, from which point the highway extends for approximately a quarter of a mile in a direct line about 16 degrees south of due west. The curve is approximately a 10-degree curve and is uniform. On the south shoulder, facing the west, were three road signs, one being 1,033 feet west of the bridge with the word " slow," one being 848 feet west of the bridge with the words " narrow bridge," and one being 662 feet west of the bridge with the word " curve." All portions of the highway that have been described were level, with no obstructions in either direction to the view of persons traveling thereon. The width of the paving was 18 feet. The paving constituting the floor of the bridge was of the same width. On each side of the bridge was a low iron railing; the distance between the railings being 18 feet 4 inches. At about 9:30 a. m. on October 21, 1933, a vehicle called a tractor-trailer was being driven west on this highway toward the bridge. This whole vehicle was 34 feet 8 inches long. Its forepart was a truck with a cab for the driver, and having the usual two axles. The rear part of the vehicle was a trailer, having beneath it one axle toward its rear. The forepart of the trailer rested on the rear part of the truck. The attachment of the front part of the trailer to the rear part of the truck was by means of two plates and a pin through them, so that the trailer followed the direction of the truck. The trailer had a solidly inclosed body 22 feet in length and 10 1/2 feet in height. The width of the front fenders of the truck is 6 feet 5 inches; the width between the cab on the truck is 6 feet 6 1/2 inches; the width between the exterior sides of the inflated tires on the rear wheels of the truck is 7 feet 7 inches; and width of the body of the trailer is 7 feet and 10 inches. As this vehicle was traveling west toward the bridge, the defendant Oxborrow was driving his automobile in an easterly direction on the same highway, traveling around the curve in the road as he approached the bridge. When the tractor-trailer had progressed to a point where the front part of the vehicle was west of west end of the bridge and the rear part was on the bridge, the defendant's car and the tractor-trailer came into contact on the west portion of the bridge. There was no contact until the two vehicles were in such position in passing each other that the left-hand front corner of the trailer body came in contact with the rear part of the left side of defendant's car, the evidence being that the upper hinge of the rear left door of defendant's car struck the left front corner of the trailer, making a dent therein, and the rear left hubcap of defendant's car was knocked off apparently by the tire on the left rear wheel of the truck, as indicated by a mark on the tire. This left rear wheel of the truck was under the forward part of the trailer. It is also undisputed that the rear left fender of defendant's car was mashed down, but the front left fender and the front part of defendant's car were uninjured and bore no marks of contact with the other vehicle. As a result of the contacts described, defendant's car swerved, struck another car east of bridge, and landed in a ditch at north side of the paving east of the bridge. In this occurrence plaintiff's decedent received injuries from which she died during the same day.

Plaintiff's petition, in setting out the issues upon which the case was tried, alleges that at the time of the accident the front wheels of the tractor-trailer had passed off from the bridge but the main body of said truck was still thereon, and alleges that said body of the tractor-trailer or a portion extended across the center of the pavement and into the half of the paving that was to the left of the truck driver, and alleges that there was sufficient room for defendant's car to pass said truck on said bridge, had defendant not been driving recklessly. These allegations were at no time amended nor altered by substituted pleadings, nor withdrawn. The petition alleges that at the time of the accident the defendant was operating his car in a reckless manner in the following respects:

" 1. In driving at a rate of speed which was excessive under all of the circumstances.

2. In ignoring the signs ‘ Slow,’ ‘ Narrow Bridge’ and ‘ Curve’ and proceeding with heedlessness, rashness, and indifference, to the consequences to this plaintiff's decedent in spite of said warning signs.

3. In rashly, recklessly and heedlessly disregarding the obvious danger of the approaching truck which was or should have been apparent to the defendant under all the surrounding circumstances, in time to avoid the collision.

4. In rashly, recklessly and heedlessly driving on the wrong side of the highway in the approach of the narrow bridge in question.

5. That the defendant failed to reduce the speed of his automobile to a reasonable and proper rate when approaching the bridge and the curve in question in violation of the law as it appears in section 5031 of the Code."

The petition alleges that the recklessness complained of on the part of defendant preceded and continued up to the time of the collision.

In addition to the undisputed facts that have been set out above, there was evidence tending to show the following: That the tractor-trailer was traveling over the bridge at around 25 or 30 miles an hour; that defendant's car as it was coming into the westerly portion of the curve was traveling at 40 to 45 miles per hour, with the left wheels of the car north of the black line in the middle of the paving and the right wheels a foot south of the black lines; that the car was swaying quite a lot, meaning that the top of the car was leaning over to its left; that thereafter the defendant's car did not continue in a straight line; that as it neared the truck it appeared as if the driver was fighting for control and was angling back to his side of the road; that defendant's car had not regained its position south of the black line up to a point 10 feet west of the tractor-trailer when the witness, who testified to the facts just set out, could no longer see defendant's car because of his position in the cab of the truck; that at this point 10 feet west of the tractor, the back end of defendant's car was still on the left side of center of the road, but at a very slight angle towards its right-hand side; that, when the truck part of the tractor-vehicle passed defendant's car, the latter did not contact the truck excepting that the rear hubcap of defendant's car struck the tire of the wheel on the rear axle of the truck which is under the front end of the trailer; that the front part of the truck and the front end of defendant's car did not come into contact; that on the same morning at the hospital where defendant had been...