*1
find a
Gowing. To
distinguishable oh
facts
Stafford v.
thé
many facts and cir-
have to infer
jury question here, we would
in the Staf-
by direct evidence
supported
cumstances which were
justify
inferences.
ford case. The evidence does
of the doctrine
urges
application
II.
Plaintiff
rule
underlying reason for
loquitur
ipsa
to this case.
the.
re.s
** n * practically
true cause
is
‘that the chief evidence of the
is
“
injured person’.”
inaccessible to the
accessible to
but
[defendant]
City Ottumwa,
38 N.W.2d
240 Iowa
Eaves
College, 248 Iowa
L. R.2d
Frost v. Des Moines Still
11 A.
theory that he who has
“It is based on the
294,
III. Since question contributory consider the we need not a matter of negligence as .law.—Affirmed. J., except Hays, sitting. concur
All Justices individually and as administratrix of estate Inez J. Erickson, Erickson, deceased, appellee, Duane Morris of Joel Rodger appellant. Thompson, 51556.
No. (Reported 107) in 135 N.W.2d
May 4, 1965. Moines, Austin, Sidney, & of Des Sidney H. Grefe Ross appellant. Story City, Clark, & Larson, & and Clark Larson appellee. Ames, for
Peterson,'J. damages plaintiff, is a law action for —This It stems from an Morris Erickson’s for herself and Joel estate.. happened highway at wreck the intersection which automobile road, gravel and west about five one-half No. east County. defendant, Story Plaintiff sued miles north of Ames Rodger Thompson, alleging he caused Mr. Erickson’s car Duane opposite pushed highway into the southbound to be across striking Gates, a ear one J. highway, C. lane driven injuries Jury to Mr. Erickson. causing fatal rendered .Upon plaintiff’s motion the for defendant. court verdict trial appeals. granted a new trial. Defendant p.m., at Mr. On March about 1.96.3, Erickson I. “Chevy” primary Fordor sedan north on driving highway II intersection the collision 69.- He had reached the where occurred. Defendant, Rodger in his auto. Duane Mr. Erickson was alone following driving wagon decedent Ford station Thompson, was *4 ¿¡-ates going to the rear. Both cars were north. Mr. some'distance highway driving opposite side of the south. was on the of, Morgan proceeding W. was north ahead Mr. Mr. James Morgan off at the above turned intersection referred Erickson. gravel easterly .proceeded on the road to and direction. - happened Mr. and- to what were Mrs. only witnesses Gates The south, pulling machinery farm traveling some were who Thompson the driving car. Defendant was Ford sta- the behind wagon following Mr. Erickson. tion
t- [00] testimony Outside the of Gates, only Mr. and .tbe Mrs. ¡bebalf. plaintiff; testimony other evidence on of- the the was patrolman, -deputy- Morgan. highway patrol- the sheriff The scene, man-did not see the accident. He to the short came while after the-occurrence.- He testified he examined skid marks the marks, Thompson’s Mr. ear. said skid He the about-.100 started to. 110 feet south of They intersection.- clear and notice- were the impact. able for at least the point feet last to 15 before the n -Mr. thought driving Gates testified he Mr. -Erickson was slowly back of:the Morgan car,'which the east immedi tu'fned to ately, defendant, only ahead of him: the Thompson, Mr. was witness-on-behalf of himself and he testified :Mr. Erickson'was ¡the stopped- on highwdy. He said-he had crest of driven-over ‘ - (cid:127) -> a hill-about 600 to 700 feet south of the intersection: nn When defendant he-was:going drove over .the crest about- per miles hour. He saw the distance, then ears in the but not distinctly:-.He-proceeded along highway 69, and came when’he within up 100 to -110feet of -the car he material-1 slowed Erickson (cid:127) ly. He-then noticed .stopped- "the-Erickson ear was and-that.the gap. ear rapidly closing; between his abd-the Erickson car was. When he was feet óf Erickson -car he -realized] since stopped, might the.car was .that he it. He strike could-not ¡that drive driving left because Mr. .on Gates was south side .the-roadway. right ditch, He to>drive to but tried into -apparently paving there was his some snow ice on the because - would- not wheels turn-. He then' hit the Erickson car. It- was ¡ pushed across-the road into .cars into the -Gates'car and .both -went paving. Thompson’s the ditch-.-on west- side of-the Mr.- car on paving. ditch the east He went-intodhe side was some sitting patrol what dazed and was highway- in-his car when the afterward;. officer to the a short- came scene time Thé officer sent injured.: h-im the. hospital. However, seriously was he ; n , clearly defendant of. a matter matter so-instructed, .clearly- and the trial court and: defi- n n nitely. question important in this case:.is whether trial
.The in granting court discretion a new .trial.- abused-its The-court ha,s ¡Abuse clearly .-in wide discretion this field/ -must broad and *5 786 reversing interfering
appear justified this court is before . 1251, Schantz, by court order a trial Jordan 268 N.W. Iowa 259; Gregory Suhr, 264 221 N.W. 180; Mitchell 224 278 N.W. Kearney, Williams v. Iowa Sanford, 408; Eby v. N.W. Brennan, 213 Iowa Iowa N.W. 918. 805, 273 testimony he may from defendant’s own
It be inferred car an elevated had an unobstructed'view of decedent’s feet, fix the at distance distance. Two disinterested witnesses traveling 65 admits he 600' to 700 Tie was another at' feet. first saw to tell when he says he unable miles an hour. He was proceeded he moving stopped, yet or II whether it Chevy it his until- was attempting effectively rediice without oppo ear, striking sending it into too late to decedent’s avoid persuasive evidence of highway. This is busy lane site n negligence. defendant’s importance whether dece appéars not to of vital slowly moving when defendant struck stopped dent’s car was admits, it from Defendant in effect he was-alerted the rear. may stopped he distance fact it have been when was such-a exer it have been avoided had he from that the collision could right had.no From on he assume cised care. then reasonable ' n (cid:127)! (cid:127) (cid:127) was moving. n Only stopped. Morgan, wás testified decedent defendant did not college graduate schoolteacher, he-was sure decedent said Gates, driver, -the testified decedent stop-. come to a southbound stop.- moving him Mrs. testi- was still and he did not see Hates immediately impact fied that she saw before the dece- the last moving. highway,-still dent’s car was over on east'half of ' " nn All three witnesses were disinterested. clearly appear It-does not it was-an of discretion abuse feel evi contrary for trial court" to the verdict was to the' dence, by ground evidence, or was not sustained sufficient years. 24'4(f')", trial rule new statute or for fiver See rule. Procedure, superseded Rules of thereby.. Civil and statutes We difficulty finding adequate have no the instructions basis for of a grant justice. new trial in the interest divisions;
II. The action was in two first counts or *6 pecuni- the widow estate for the as administratrix of decedent’s ary loss widow individually thereto. The second was her injury own-loss of consortium the times of his and between (just death three months which with during decedent, two frac- -in skull, consciousness). regained apparent, tures his never is It in of period death, view the short and injury between the widow could not have sustained a of large damages amount under the Also, second count. respec- decedent and his were 59 and wife tively injury at only the time of and had .been married and two . years. one-half single (No. The court in included a 6)' instruction what plaintiff (there really plaintiffs) were two in each count -must prove in to order recover on of both causes action. In vital instruction, probably usually important true —the most of —as all, was told: “In for plaintiff-administratrix order and plaintiff herself in own right against her' to- recover defendant] prove by- must- preponderance she a of the evidence each and all following propositions.” Propositions 1, 2 respectively and 3 are that defendant was negligent in one or respects more of the four charged; neg- ligence proximate injuries was the of damages cause sus- tainéd; guilty contributory negligence. decedent was The proposition fourth is: “4. That decedent’s estate dam- suffered ages ás a negligence result of defendánt, the amount thereof, plaintiff and that herself as damages suffered a result of added). (emphasis defendant” 6-goes require
Instruction on finding plaintiff-adminis- to á prove tratrix must foregoing each all of the propositions' by preponderance' a of evidence in order to recover and a find- like ing -in order for in own-right her in- recover. The states,'“However, you struction then' if find that she has failed * * * prove foregoing one or more of the propositions,-then against she cannot recover defendant.” quoted parts erroneously this instruction require
proof that both the estate and the widow herself suffered-dam ages in order for either to recover. Of course the estate should compelled prove, in been order to on I, recover Count damages in "Nor; claimed the widow Count II. im- less - prove, compelled to .been
portance, tbe widow havé should by-the estate damages II, to recover on her Count claimed order: separate .cause of action-and ini Count I. Each count a stated is, usually instructions. in the should have been so treated- must what' single -to attempt unwise to state instruction of action. proved-in order than one cause to recover on more n it is that mayfairly.be instruction .6 that said.of The least viewed may jury." Whether as very-confusing have been may merely confusing,. it- erroneous,-' was, as -we believe account for the verdict. ' requirement Til.’ the familiar with .deals .Instruction:8 any.vehicle Code, 1962, drive 321.285, person section “no shall * * * bring it to permit him to greater than will at' a *7 stop ahead.” within assured clear distance the. nn negligence made charge I of Instruction-8-states: “The second to is that he failed by plaintiff-administratrix against' defendant and at a prudent speed drive at'a his automobile careful bring.it to permit him to' speed greater than that which would '. stop the distance ahead.” within ’assured-clear (cid:127) jury-was. charged defendant plaintiff Thus told the to-.stop speed him greater permit- than to drive at a would fwiled charged de plaintiff within the assured clear distance. In fact greater him-to speed permit did at a fendant drive thamwould It 8 should stop within distance. obvious instruction .such charge “not”-or “no” should have stated as made the word the or “greater”'in quoted portion before of been inserted to only part .this-is the-fault -be-found - instruction'. But small n -> (cid:127) - with, the!instruction n , goes the-statutory prohibition -quote on-to -.Instruction ¡ permit greater against -speed stopping .a than will- driving at violation of continues, “a the assured clear distance-. within n to such requirement negligence constitutes unless this failure by the failure of another to-observe law is caused observe the making.” emergency driver’s.own law'Or a sudden of the not -in clear distance hhead” The! instruction then'defines “assured nnn approved-by many‘times. us language: the'-familiar .-by-saying’defendant-would instruction--concludes . \.Th'e stop- permit would greater if at a than negligent he-drove within, suck, ping the assured clear distance “unless .was faiktfe part by caused in whole or .by; some violation of the .law dece- in The n burden.is prove by dent. upon .plaintiff-to preponderamoe a. evidence dutyMs as above set out.”- . . defendant failed proviso, exception .commencing . with inclusion :of failure”,--in “unless paragraphs, last each two sentence, the last was under No issue' error this record. that- party this crash was of a
raised failure third caused law. allegation to observe the If defendant had made such prove upon upon burden would have him it, been to not disprove it. Hutchins, McMaster 39, 47, 48, Iowa 509, 513, 514, N.W.2d and citations. Although plaintiff required was of prove course .de - (cid:127) proximate was the cause
fendant’s- and decedent’s contributory negligence, required freedom to go she was-hot prove further and party the failure of a third law .observe was not a cause the collision. Ibid. .... As emergency to an making, own driver’s .violation, legal
is one the four statutory excuses for of :a rer quirement recognized Kisling Thierman, in. 214 Iowa precedents many N.W. and the that it. have followed This record indicates defendant no made claim the trial co.u-rt any legal excuse. If legal defendant-claimed a '.-excuse upon prove burden would have been him it, upon plainT it. disprove Pinckney tiff to v. Watkinson, 144; 151, 258, 262,. citations; 116 N.W.2d Hutchins, McMaster *8 supra, citations; Bertrand, and Overturf v. 596, 605; Iowa 182, 128 N.W.2d 187. The effect of including instruction 8, as it does the sentence, italicized supra, require plaintiff was to to disprove a-legal excuse which was not claimed..
Further,
legal
to
as a
available
an
excuse
emer
gency must not be of the
making
driver’s own
in
part.
.wholeor in
jury
properly find
No.
could
there was an emergency
not,
here
part”,
“at- least: in considerable
of. defendant’s own making;
McCuen,
188. Tbe order mak- own emergency not of defendant’s of sufficient evidence an emergency was to such in instruction 8 ing. reference therefore error. in the last proviso exception regard to the
With of the violation supra, to “some paragraph instruction, of the although objectionable, not assuming by decedent”, this was law contributory negli really freedom from was one of the matter provisions what jury have told somewhere gence, should been the guess not left to required to observe and law decedent was of instructed. jury so they Nowhere was what were. in both counts charges negligence of IV. One vehicle under petition failure have his defendant’s to of was proper in speed rate reduce the to reasonable control and of in violation public highways, approaching an intersection of clearly ample to evidence war 321.288. There was Code section it. It was error not to submit charge. of this submission rant in negligence another, charge later was The fact there does control, submitted, not petition merely lack of which was — jury should been told nonprejudicial. The the error render including duty to reduce statutory requirement, approaching proper rate in the intersection. to a reasonable charge negligence which submit V. The first following decedent’s more alleged was defendant’s vehicle ted closely proper, reasonable and violation of section than was recites, correctly as we appealed order be 321.307. The charge to it error submit because insufficient lieve, was support charge it. Also that submission of tended evidence controversy. jury as to the real confuse charge of a defendant’s where Submission supporting usually preju- evidence is insufficient deemed there defendant, plaintiff. Nevertheless dicial to is conceiv- submitting did charge this first tend to that confuse able properly from the vital issues its attention the case. divert object
VI. The fact did not instruc pointed prevent of the matters above out does because tions in determining of them it has consideration whether been our for new trial was a clear abuse discretion. the order shown
791.' 37, 43, Service Co., 250 Iowa 92 Gas v. Keokuk Schneider 724, Co., 732, 254 Iowa 443; v. Constr. 439, Brower N.W.2d Coleman Hutchins, supra, 255 v. 260, 261; McMaster 256, 119 N.W.2d Keenan, 256 514; v. Coulthard 48, 509, N.W.2d 39, Iowa 120 597, 601. 890, 129 N.W.2d 897, Iowa committed, error, was necessary reversible Nor power court’s rule the 'trial to. If were the upon the trial. meaningless. Hall v. West justice would correct failure 734, 737; 458, 62 N.W.2d Nicholson Moines, 463, 245 Des Iowa 330, 533, 318, 246 67 N.W.2d 54 Moines, Iowa City of Des v. 597, 890, 898, 129 N.W.2d Keenan, supra, Iowa v. 256 Coulthard citations; Highway also Larew Iowa State 602, and See 1094, 462, 464. 1089, 120 N.W.2d Comm., Iowa reply cited in defendant’s brief Four the five decisions fifth, In we. here. Mazur v. such an order as affirm 1292, 807, 813, we Grantham, 1302, 255 Iowa con N.W.2d primarily on the order for new trial was claimed' cluded based sustain, miscarriage rather law could than a errors of we ' (cid:127) justice. opening brief, precedent, cited in defendant’s- (cid:127)Another 147, “more.nearly Gamber, 99, Iowa N.W.2d Jacobsen in which for a is based on the cases the order new trial resembles question. pre-> law cases determination Such erroneous question law involved than the primarily sent rather exer 112, 114, Murray, In re of discretion. Estate of 238 Iowa cise citation.” 26 N.W.2d and Coleman Brower Construc Co., supra, 724, 733, N.W.2d 261. tion may fairly be asserted able no eounsel.for cites defendant closely authority supports a Their which reversal. briefs resem- appellant which,- several recent a. ble those cases without dissenting vote, such an as affirm order this.—Affirmed. Moore, JJ,,
Garfield, J., LarsoN, C. Snell concur. ThompsoN JJ., Thornton, Stuart, concur-specially. sitting. Hays, J., not — In ease" (concurring specially)
Thornton, J. power of the- plaintiff-appellant did invoke the broad inherent *10 justice. in grant court to trial the interest substantial a new 3, 344(f) in rule pointed power out such referred to should Procedure, power grant Rules of Civil same as to not the the 244, trial a new under rule of Civil Procedure. Rules points In her motion a to particularly for new trial pointed No. substantially instruction 8. It is erroneous in as out majority opinion. the That sufficient grant alone is to sustain the of a No. in speci- new trial. Instruction 6 is also and error the negligence fication of on following closely too not should been submitted as there was insufficient evidence to a sustain finding thereon. disagree part follows,
I Division I with that that reads as clearly appear “It not does was an abuse of discretion for the contrary trial to verdict to evidence, court feel the the or by evidence, ground was not sustained sufficient for new trial * * or for over years. 244(f), statute rule See rule 244(f), "What rule Rules of Procedure, is, Civil states “That the report verdict, evidence, decision is sustained sufficient contrary law;”. or is
We should remember we considering are a defendant’s ver- proof plaintiff. The burden of is on case, dict. In this she must prove alleged proximate act of was a cause of the injury. From damage produced by and plaintiff, the evidence Mr. Mrs. that of and Gates the southbound car the west jury find lane, the could the Morgan right car that turned off of gravel' highway into the not give signal road did for the right 57, Record, page 25, ;26 Record, turn. lines page 52, lines Record, 4-11; 61, page 8-16; Record, lines and page 63, line 34 64, line 1. This page plaintiff’s caused decedent brake his suddenly Morgan car to avoid the Record, page 52, 32, car. lines 33; Record, page 58, 1; line Record, page 59, and lines and 25-27. jury Morgan find could also the had not completed car pavement and off the turn was not at time of collision.
Record, page 54, 1, 2; page lines page 61, lines line 1. properly
From could find proximate cause the accident was failure the Morgan signal car to suddenly causing decedent brake his car turn, thus right accident, of the such was the cause pull left, to the that rear. striking car from the defendant decedent’s top of the remembered distance from It should be intersection, intersection was 600 feet from the hill south blocks, city normal and the limit on the length of two hour. per 70 miles highway
ThompsoN JJ., join special in this concurrence. Stuart, *11 as father and E. Fischer and Jerome C. next Fischer, Lois Ronald, Florence, C., Frederick Jerome friend of minors, appellants, all v. De Fischer, James al., appellees. et Marie Hauber lores No. 51705. 918)
(Reported in 134 N.W.2d May 4, 1965.