Yance v. Hoskins
| Decision Date | 27 September 1938 |
| Docket Number | 44258. |
| Citation | 281 N.W. 489,225 Iowa 1108 |
| Parties | YANCE v. HOSKINS. |
| Court | Iowa Supreme Court |
Appeal from District Court, Page County; Earl Peters, Judge.
Action at law for damages for injuries alleged to have been sustained by plaintiff as the result of negligence on the part of the driver of a car owned by defendant and driven with defendant's consent. The opinion states the facts. From a verdict and judgment in favor of the plaintiff, the defendant appeals.
Affirmed.
Stipe Davidson & Davidson, of Clarinda, for appellant.
Ferguson & Ferguson, of Shenandoah, for appellee.
This action arises out of a collision between two automobiles which occurred on a bridge on an east and west dirt road a few miles west of the town of Coin, in Page County, Iowa, on the 17th day of May, 1936, between seven and eight o'clock in the evening. The plaintiff, a young man then about 18 years of age, was driving a 1926 Model T Ford coupe eastward upon this highway, and a 1930 Chevrolet sedan owned by the defendant, Floyd Hoskins, and driven by his 17 year old son, John Hoskins, was proceeding westward on said highway. The collision occurred on a wooden bridge about 45 feet long and 14 feet wide between the wooden guard rails along the sides thereof, which spans a creek or drainage ditch. To the westward of this bridge there is a hill with a fairly steep grade, the top of which is some distance nearer to the bridge than a hill which lies to the eastward of the bridge. The plaintiff, Joseph Louis Yance, was alone in the Ford coupe, while the defendant's son, John Hoskins, was accompanied by four other young people in the Chevrolet sedan, two of whom were seated with him in the front seat. According to the evidence it was then dusk and neither driver could see the outlines of the other's car, but the lights on both cars were lighted, and the occupants of each car knew that the other car was coming from the opposite direction. Plaintiff testified that he came over the top of the hill to the west of the bridge about the same time that the car driven by the defendant's son came over the top of the hill to the east of the bridge; that, as he came down the hill west of the bridge, his car was traveling about 20 miles per hour, and as he approached the west end of the bridge he slowed down and was traveling less than 15 miles per hour that, as he entered the bridge, he was on the south side within a foot of the south railing and he then saw the other car coming from the east on the north side of the road east of the bridge; that when he had proceeded one-half to two-thirds of the way across the bridge his car was within 6 inches of the south railing; that the other car came upon the bridge and swung directly into the center and kept coming at him until it hit the left front wheel of his car, and that his right front wheel was then within 6 inches of the south railing of the bridge; that when his car was struck he thought it was forced back to the west; that his car was knocked through the south railing and left the bridge about 10 feet from the east end and landed upright on its wheels on the east side of the ditch, about 10 or 12 feet from the east end of the bridge, facing in a southeasterly direction. According to the testimony of John Hoskins, the driver of defendant's car, he was half way down between the top of the hill and the bridge when he saw plaintiff come over the top of the hill to the westward; that defendant's car was then going 35 or 40 miles per hour, but that he then began to slow down and when he got to the bridge his speed was not more than 25 miles per hour; that his car came on the bridge first; that as he saw the plaintiff's car west of the bridge it was turned somewhat to the south side of the road and he thought plaintiff was going to slow down so that defendant's car could go on the bridge first; that as defendant's car was starting onto the bridge the plaintiff pulled his car back onto the narrow approach to the bridge at the west end thereof; that defendant's car proceeded across the bridge with its right side about eight inches from the north side of the bridge; that he could not say where plaintiff's car came on the bridge with reference to the center; that the impact between the cars on the bridge was about 10 feet from the west end; that the plaintiff's car was closer to the south side of the bridge than to the north and its left side was pretty close to the center of the bridge; that the front wheel of the Yance car struck the left front wheel of defendant's car; that defendant's car was thrown around and knocked off the railing at the northwest corner of the bridge; that when defendant's car finally came to rest it was facing southwest with its front wheels north of the road and its rear wheels in the ditch to the north of the road west of the bridge; that plaintiff's car first struck the west end of the railing on the south side of the bridge, shoved it off all the way along. It is undisputed that the south railing from the west end of the bridge to a point between 6 to 16 feet from the east end was broken off, and that a small portion of the railing at the west end of the bridge on the north side thereof was also broken off. The evidence tends to show that the clearance of the bridge was about 14 feet between the railings; that the width of plaintiff's car was about 5 feet 8 inches; and that the width of defendant's car was about the same.
Upon the trial of the case, the defendant's motion for a directed verdict, at the close of plaintiff's evidence and again at the close of all the evidence, was overruled. The jury returned a verdict in favor of the plaintiff for $3,000 and judgment was entered thereon. Thereafter, the defendant's motion for judgment notwithstanding the verdict, motion for new trial, and exceptions to instructions, were overruled. From the judgment, and from the order overruling his motion for judgment notwithstanding the verdict, motion for new trial, and exceptions to instructions, the defendant has appealed.
Instead of following the forms suggested by Rule 30 of this court and setting out in separate statements each error relied on for reversal, the appellant, under the heading, " Errors relied upon for reversal", has arranged his brief and argument into five separately numbered divisions, all but one of which contain subdivisions. None of these divisions or subdivisions follows the forms suggested by the rule, and, while it is quite possible that counsel could improve the method provided by this rule, the court would prefer that, until officially changed, this rule be observed. The appellee has called attention to this failure of the appellant and moved that the appeal be dismissed; but, inasmuch as the appellee seems to have had no trouble in discerning the matters of which appellant complains, and has presented extensive counter arguments as to each of them, we are reluctant to sustain the motion and will consider the appeal upon its merits.
In subdivision " A" of Division I of his brief and argument appellant urges that the trial court erred in refusing to sustain the ground of his motion for a directed verdict which alleged that the record showed that the plaintiff was guilty of contributory negligence, as a matter of law, because, at the time and place of the accident and just before the accident, the car which plaintiff was driving was not equipped with adequate brakes. Assuming for the present, but not deciding, that the record shows that the plaintiff's car was not equipped with adequate brakes as required by statute, and that this constituted negligence on the part of the plaintiff, this would not be sufficient ground for holding, as a matter of law, that the plaintiff was guilty of contributory negligence. It is so elementary as to require no citation of authority, that the mere fact that a plaintiff may be guilty of negligence is not sufficient to preclude a verdict in his behalf. Before he could be held guilty of contributory negligence, as a matter of law, it must conclusively appear that such negligence of the plaintiff contributed in some way or in some degree to the accident and injuries for which he asks relief. It is also elementary that, in deciding a motion for a directed verdict, the evidence must be considered in the light most favorable to the party against whom the motion is directed.
The evidence in this case was such that the jury might have found therefrom that, as the plaintiff proceeded down the hill west of the bridge, his speed was approximately 20 miles per hour that he slowed down as he approached the bridge and was going less than 15 miles per hour when he went onto it; that when plaintiff went onto the west end of the bridge the defendant's car was some distance east of the east end of the bridge on the north side of the road; that plaintiff had reached a point about two-thirds of the way across the bridge from the west end, with the right side of his car within 6 inches of the south railing when the defendant's car came onto the bridge; that, as defendant's car came onto the east end of the bridge, it was traveling 25 miles per hour, and swung from the north side of the road, where it had been traveling, across the center line of the bridge, and struck the left front wheel of plaintiff's car; and that when plaintiff's car was struck the right wheels thereof were not more than 6 inches from the south railing, leaving 7 feet 10 inches between the north side of plaintiff's car and the railing on the north side of the bridge. In the light of such evidence we are unable to see how it could be held, as a matter of law, that the plaintiff's failure to have adequate brakes contributed to the accident and injuries of which he comp...
To continue reading
Request your trial