Youngs v. Fort

• Decision Date: 02 May 1961
• Docket Number: No. 50226,50226
• Citation: 109 N.W.2d 230,252 Iowa 939
• Parties: Marvin A. YOUNGS, as Administrator of the Estate of Bernice Mildred Youngs, Deceased, Appellee, v. John Francis FORT, and James Lee Connell, Appellants.
• Court: Iowa Supreme Court

Page 230

109 N.W.2d 230

252 Iowa 939

Marvin A. YOUNGS, as Administrator of the Estate of Bernice Mildred Youngs, Deceased, Appellee, v. John Francis FORT, and James Lee Connell, Appellants.

No. 50226.

Supreme Court of Iowa.

May 2, 1961.

F. J. MacLaughlin, Davenport, for appellants.

Lambach, Shorey & Plath, Davenport, for appellee.

SNELL, Justice.

This is an action resulting from a collision of motor vehicles at the intersection of Kimberly Road and Jersey Ridge Road in the suburban area of Davenport.

Jersey Ridge Road runs north and south with stop signs requiring traffic to stop before crossing Kimberly Road.

Kimberly Road runs east and west with a statutory speed limit of 45 miles per hour.

As a result of the collision, Bernice Mildred Youngs died. She will be referred to as the decedent. The plaintiff is the administrator of her estate.

On the late afternoon of October 23, 1956, decedent, together with her husband's parents, was in an automobile owned by her father-in-law proceeding north on Jersey Ridge Road. It will be referred to as the Youngs car. The car stopped and remained standing for some time at the stop sign on the southeast corner of the intersection and then suddenly started forward across the intersection.

At the same time a car registered in the names of John Francis Fort and James Lee Connell was approaching from the east on Kimberly Road. The car was driven by James Lee Connell, a young man slightly less than 18 years of age. Because of his age the car was registered in his name and the name of his prospective father-in-law.

The Youngs car and the Connell car collided in the northeast quarter of the intersection. The front of the Connell car struck the right center of the Youngs car. The impact forced the Youngs car across the intersection to the northwest edge thereof and the Connell car to the west part of the intersection and facing east. The front of the Connell car was severly crushed. The right side of the Youngs car was demolished, the top of the car collapsed upward and supporting posts were broken. Decedent was trapped in the back seat of the car to such an extent that it took four men to pull the seats and cushions away sufficiently to permit her removal from the car. The decedent died shortly after the collision. Her parents-in-law were thrown from the car and killed.

Plaintiff alleged in his petition that decedent was riding as a passenger. The case was tried to a jury on that theory. The trial court instructed the jury accordingly and no exceptions were taken to such instructions. In argument defendants now suggest that it is a matter of conjecture whether she was a guest, mere passenger, driver or otherwise. We will refer to this in a subsequent division.

I. The trial court submitted to the jury two specifications of negligence against defendants: (1) In operating said vehicle at a speed in excess of the statutory speed limit of 45 miles per hour; and (2) In failing to have the defendants' vehicle under control in violation of the statute.

At the close of plaintiff's evidence and after both sides had rested and after the verdict, the defendants made all the usual motions for directed verdict, judgment notwithstanding the verdict and for a new trial.

The only exceptions to the instructions were to the submission of the two specifications of negligence. The other instructions, and the correctness of the law as set forth therein, were not challenged.

The jury returned a verdict for plaintiff and against defendants. Our problem is the sufficiency of the evidence to support the submission of the issues to the jury.

After the instructions had been read to the jury and before the jury retired to deliberate, one of the jurors asked the court if he could ask a question, and in response to an affirmative answer, the juror stated, 'May I ask if there is any insurance in this case?' To which the court responded, 'That is a matter that you cannot consider.' As soon as the jury had retired, the defendants moved for a mistrial because of this question and answer. The motion for mistrial having been overruled, defendants now urge reversal by virtue thereof.

II. Plaintiff's evidence as to defendant's speed was circumstantial. Was it sufficient for submission to the jury? The statutory speed limit on Kimberly Road was 45 miles per hour. The court so instructed the jury. When defendant saw the Youngs car start across the intersection he applied his brakes. Skid marks from beginning to where the car stopped after the collision had a total length of 92 feet. Defendants' car swung around after the impact and the 92 feet include about 15 feet made after impact. The Youngs car traveled 24 feet after the impact to the shoulder of Kimberly Road slightly west of the intersection. The condition of the Youngs car after the collision, as described by witnesses and as shown by pictures received in evidence, indicated that it was struck with terrific force. The right center was crushed in. The top was crushed up to a peak. From the front, it appeared bent from a straight line into a V-shape. A city patrolman testified that he examined the car on both sides and the force of the impact was so great that the left side had both doors sprung open and the center post, which separates the front and rear doors, was extended straight out from the top 'which gave in the appearance like you would take a milk carton and break it half in two.' An eyewitness said, 'The Youngs car just seemed to bounce in the air and bounced along until it came to rest on the shoulder.' Two people were thrown from the car and killed instantly. Decedent was wedged in the back seat so that it took four men to extricate her. She died in a few minutes.

To rebut such conclusions as might be drawn from circumstances, the defendants offered three witnesses. The defendant driver testified traffic on Kimberly Road was moving at 45 miles per hour or less. He estimated his speed at about 40 miles per hour. A Mr. Kinner, from his car at the stop sign north of the intersection, saw the approaching cars and collision. He said defendants' car 'was just traveling at normal speed compared with other cars on the highway.' A Mrs. Wilson, in her car turning left at the intersection, saw defendants' car approaching. She estimated defendant's speed at 40 to 41 miles per hour. After turning, Mrs. Wilson was facing away from the intersection but saw the collision through her rearview mirror. In argument the parties discuss the questions of distance, actual and relative speeds, time expressed in seconds and the conclusions to be reached therefrom. Undoubtedly these theories were presented to and considered by the jury. It is not for us to pass upon the weight and credit of the evidence. There were questions of fact from which reasonable minds might draw varying conclusions, and the determination was for the jury.

III. In relying on circumstantial evidence, plaintiff's case 'must be supported by evidence such as to make her theory of causation reasonably probable, not merely possible, and more probable than any other hypothesis based on such evidence. * * * But this means only the evidence must be such as to raise a jury question within the limits of the foregoing rule; it need not be conclusive. * * * disputed questions of fact from which reasonable minds might draw varying conclusions are for the determination of the jury.' Hackman v. Beckwith, 245 Iowa 791, 795, 64 N.W.2d 275, 278, and cases cited therein.

A case for the jury may be made by circumstantial evidence, notwithstanding contrary direct evidence for defendant. Soreide v. Vilas & Company, 247 Iowa 1139, 1149, 78 N.W.2d 41.

'We are committed to the rule * * * that speed may be proven by circumstantial evidence and that such evidence may be sufficient to overcome direct evidence as to speed. * * * We have also said that in most cases the question of speed must be determined from the circumstances.' Davidson v. Vast, 233 Iowa 534, 540, 10 N.W.2d 12, 16.

Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47, 50, discloses a...