*1 сhanged ineffective whether it order was whether language. merely clarified its
scope original judgment, or judgment was erroneous.
In form the either is remanded for cause judgment reversed and remanded. herewith. —Reversed
judgment accord
All Justices concur. Soreide, of Edwin S. administratrix of estate M. Soreide,
Laura corporation, Company,
deceased, appellee, v. Vilas & al., appellants. et appellee, v. Vilas Company, corporation, Standard Oil al., appellants. corporation, et Company,
&
No. 48951. 41) in 78 N.W.2d
(Reported
July 26, 1956. September
Rehearing Denied 1956. Edson, T. Lake,
Wendell of Wadden, Storm Sifford & City, Vest,
Sioux & City, appellants. Wilson of Sac for
Shull, Marshall, Mayne, Vizintos, City, Marks & of Sioux
for appellees. trial, J. These actions, two law for consolidated
G-areibld, nighttime
resulted from a two collision of automobiles at or near
a “Y” paved primary highways May 21, intersection
One action is for damages plaintiff to the car Chevrolet Company,
Standard damages Oil for other estate employee-driver vehicle, Soreide, of that Edwin S. killed owner, collision. & Company, Defendants Vilas are
Oliver Vilas, driver, car, W. of the other a Cadillac. There
a jury judgment verdict plaintiff for from each which appealed.
defendants have collision occurred U. on east-and-west S. place
near the “Y” where the branch approach west joins
Iowa Highway 110 20 from north. Highway 110 does go farther south. The proceeding Vilas Cadillac was east
on 20. Mr. Vilas turn intended to north west onto over the “Y.” Vilas, surviving eyewitness crash,
branch of the sole to the
testifies the Chevrolet came down the west fork of “didn’t
stop intersection, right at the through onto came across
my (south) my lane and crashed car.” into necessarily
Plaintiffs’ cases rest on circumstantial evidence
consisting primarily upon, of tire and other near High- marks
way physical 20 and facts at the scene of the collision from plaintiffs
which jury claim properly the find the could Chev-
rolet did not come down the west branch of the “Y” as Vilas
testifies but traveling negligently west on and Vilas the by driving wrong
caused collision on (north) the side of the
center line where cars collided. the
Questions presented appeal on are whether the court erred admitting upon highway evidence of marks the overrul-
ing verdict, judgment notwith- defendants’ motions for dirеcted judgment
standing verdict, and new trial. It is also claimed the $50,000 excessive.
on the verdict for the Soreide case is col- prove the plaintiffs had burden to
I. Of course the by negligence of the resulting damage were caused
lision by and that alleged them respects
Vilas in one or more of the contributory negligence.
Soreide was free from degree requisite parties disagree
Since the as to the
proof re in a circumstantial evidence we will resting ease on
peat many say point. what so on that The evi recent decisions theory causation plaintiffs’
dence must be such as make
reasonably probable probable, merely possible, not and mоre theory
than other It is neces based on such evidence.' not
sary testimony possible every clear exclude other be so as to
theory. 341, Hansen, 669, 677, Turner v. 247 Iowa 75 N.W.2d
345; 225, 227, Hull, v. 604, 607, Bokhoven 247 Iowa N.W.2d citations; Whiting 479, 74 N.W.2d Stephas, 473, v. 247 Iowa
228, 231, 232; 1352, 1357, 66 Curtis, Shinofield v. 465, 964, 50 A. L. R.2d 468, and citations. Beckwith,
Hackman v. 64 N.W.2d Iowa “But following adds above rule: the statement of the jury only
this means must be such as to raise evidence
question not foregoing rule; within limits of it need
be conclusive.”
In considering defendants’ contention the it in
insufficient for submission to of course we view light Owens, plaintiffs. v. most favorable to Weilbrenner citation; Hackman 68 N.W.2d Beckwith, supra. disagree
II. stress We defendants with the contention may upon an inference not be another inference based
upon upon an infer fact the existence of which itself rests substantially
ence. statement While some authorities use many other urge upon and,
defendants it is like us unsound
courts, rejected may legitimately we have it. rest Inferences What is meant facts established other inferences. alleged merely contend is rule for which defendants too un-
an be based evidence which is inference
1144 conjecture speculative only possibility. or or a
certain raises or Co., 1022, 1036-38, Life 250 Martin v. Bankers
See 197 227; Co., Frusch L. P. 220, 226, Welsch v. Charles &
N.W. 431; Fegles 1012, 1021-22, 193 Constr. Co. N.W. and Mont., 9 205 Co., Cir., F.2d
McLaughlin Constr. Cir.,
citations; States, Cal., 9 224 F.2d v. United Toliver Wigmore 1 on
745; 188; 95 A.L.R. annotations Evi 41; on Ed., section 1 Jones Commentaries
Evidence, 3d 116b, S., Evidence, Ed., 364; 31 C. J. section
dence, 2d section 730; Jur., Evidence, 165, page 169. Am. section
page supra, cites
Fegles McLaughlin Co., Constr. Co. v. Constr. state- jurisdictions for
numerous decisions from different an- on fallacy “The an based
ment inference frequently repudiated by the courts
other inference has been * >£>% evidence,
III. argue Defendants to admit it was error “inherently improbable
said to be marks impossible”, show the plaintiffs Highway near which claim lane travеling (north)
Chevrolet right 20 in its west on to referred the collision occurred The evidence there. north long
describes a in the fresh tire mark 74 feet inches blacktop area 20, starting V-shaped
lane of feet west of a 4% approach north of of the west southeast mark The west three feet of mark were smeared. “B” accom- designated on the shown the broken line south
panying plat, prepared from an exhibit. About three feet center long mark, little south of thе the west end of the tire in the crescent-shaped gouge lane,
of the north there was a fresh deep. pavement, long two inch
concrete about and one-fourth feet bright marked gouge
“It was This happened.” and new. Just plat. gouge
“A” on there accompanying Northwest north mark, designated plat, on the
was a fresh tire “C” on the “It leading
curb of 20 at the west side of lane a farmstead. long
looked car came similar to this skid mark.” The Soreide “S”, marked rectangle highway,
rest where north mark “C”
appears plat. tire On directTine between the freshly in several
and the wrecked Chevrolet torn the sod though аcross the
places. object “It had skidded looked as an
grass plowed it out.”
This plat, above referredd to, may help visualize the physical facts at the scene of the tragedy. The rectangle marked“V” just driveway repre- east of the entrance to the Jacobson rectangles
sents the Cadillac as it came to rest. other two “V” of the 20, “S”, marked indicate the location two they
cars, by Vilas, when collided. as testified proper
We have the evidence no doubt it was to admit on and 20 at
as to tire other marks near descriptive of the crash. It well settled
scene admissible, espe
of tire marks at of a place collision question
cially on with re of the location the vehicles
spect highway, to the center here it of the where as
reasonably inferred the marks were one col made
liding Owens, 580, 246 Iowa supra, vehicles. v. Weilbrenner citations, especially annotations N.W.2d 112, 116; Thornbury Maley,
23 A.L.R.2d v. 242 Iowa 34, 37, 38, Brady McQuown, 581; Inc., Miller, Slabaugh
40 N.W.2d v. Eldon See also *7 says, 55 “Often there which * * '* situation; are skid marks which seem to indicate the true
The marks was persuasive, are but not It there conclusive.” conclusively pavement op
contended marks rebutted the
posing testimony. direct ample long
There is basis for the the tire inference
mark, in places mark on and the the the north curb the torn were the
sod made automobile that col the Soreide and gouge
lision occurred at in lane of the or near the the north p.m. cars 11
pavement. The about Mr. and Mrs. Jacob crashed
son heard the collision and rushed-to the to see what window
happened. get Jacobson there fast testifies he “couldn’t out in the
enough”, mark, then con long gouge he saw the skid the places in
crete, the mark on the curb and the north the torn He a within of the
sod on line to a few feet Chevrolet. describes highway them. He several
all of had been over this stretch long skid day, p.m. as He was sure the
times that late as gouge in did not the the
mark was not there and he observe gouged-out says at the
pavement time. Jacobson also the morning the before cars in the sod were not there
places
crashed. Kurtz, long and with Highway Patrolmen Grotewald
State accidents, reached the investigating highway scene
experience crash. cars not been half hour the The two had after
about They and de-
moved. observed the same marks Jacobson saw -substantially he appearance
scribe their location as does. long
Grotewald skid testifies there were seven “ribs” the
mark, design the same front of the Chev- he found the tires obvious, says too,
rolet. Grotewald what seems “Whatever
danger appre- driver the which the skid mark car made
hended, (a) he saw it distance back when he further
the beginning of the tends to bear mаrk.” Other pictures showing
this out. Grotewald testifies that two also point
each of the wrecked indicate the of contact the cars
left front of both vehicles. fatality investi-
State Soppeland, Patrolman
gator for the patrol, arrived at scene between 8 and
morning Kurtz and after the Patrolmen crash. Grotewald
the farmer, morning. These Jacobson, also were there substantially say,
last effect, three then conditions were
same night long patrolmen before. The measured
skid mark and took scene. several other measurements Soppeland large
Patrolman he stain that cov- testifies “saw
ered than it pavement, the center of the to the north more
did south, to the mark edge at about the west of the skid gouged-out
where this lane.” This wit- place was in the north they
ness places examined the torn to sure the sod make
were fresh. says night
Patrolman Kurtz that on collision inspected
“we” the south shoulder ditch for about east, west, feet and 10 to 15 feet of where the Cadillac came rest, found no had not marks in that area and the surface
been disturbed. argument
Defendants’ on assigned this error a covers wide
range rеally goes sufficiency to the evidence to war- of the
rant jury. argued submission is the cases to the It is it probable
more long by the skid mark made a westbound was
car defendants’ “flagged Grohe with witness testifies down” he
a lantern say after the crash. Grohe and his wife both the
brakes of “squealed” this car coming stop in to a about even leading
with the drive the on into farmstead the north. possible by
While is the long it the mark was made ear jury prop-
Grohe testifies he we are flagged, clear the could probable than improbable or at
erly find this claim is least less place, first tes- theory mark. the Soreide car left the In the
the respect is con- important Mrs. in one
timony of Mr. and Grohe Ludvigson. by plaintiffs’ Mr. Mrs. witnesses
tradicted stop- “squealed” in of a that brakes car
The Grohes’ evidence testimony or he saw in left
ping is also doubt Jacobson’s coming to difficulty had the crash that car after
heard no from says approached the stop. his car scene
a Another witness there, he were only and Jacobson
the when the Grohes east light stopped gradually without “flagged down” with testimony one no more than his is
“squealing” brakes. There lantern at about this time. flagged with a car was
westbound design comparison with the long skid mark
There is no flagged. that was
of the tires on the car the same car legitimately could find
Further, jury the mark on north curb and lоng mark made the the
made the also infer- support an gouges in the There is no evidence
the sod. these flagged made testifies he
ence the automobile Grohe persuasive gouge
other the concrete. This marks the theory made plaintiffs’ car that their favor
circumstance long
the mark. they di argument were entitled to
IV. Defendants’ claimed inad largely based on the
rected verdicts seems to be
missibility preceding division circumstantial evidence the allege direct properly Their motions to
holds was received. from and Soreide’s freedom
proof negligence of defendant Vilas’ testimony
contributory think negligence insufficient. We jury. for submission to the issues sufficient the outset called attention to Mr. Vilas’ evidence
At we approach 110, not car did
the Soreide came down the west
stop intersection, into south lane of crossed over at Vilas three into testifies least crashed his Cadillac there. he although
times he did not turn to the before the collision left shown,
planned to turn left into 110. Under circumstances accept Mr. as compelled not Vilas’
verity. finding the were The entire record warrants the facts Co., Darling & testified him. See Smith 56 N.W.2d and citations.
1149 indicated, persuasive evidence—circum- there is we have As contrary lane, crashed in the north
stantial, it ears is true —the the collision occurred. His of where
to Vilas’ version for 20 is stop and failed tо came down 110
Soreide collided. convincing version of where the cars
no more than his occurred the north indicates the crash
The same evidence that 20, not from down signifies Soreide came the east
lane also which made the extremely improbable the automobile
110. It is on 20. Location of the
long proceeding mark not west skid traveling proper in its lane and
mark ear was indicates the collision.
driver made an effort to avoid the rely of the Cadillac after
Defendants on the location rendering theory improbable. the collision plaintiffs’
crash as gouge came to 75 feet of the in the concrete.
It rest 70 to west suggest not
This and other defendants did entitle circumstances
them to directed verdicts. Mr. testifies he reduced his Vilas in-
speed hour, knowing approaching to 25 miles he was an “I came, spin-
tersection and that when crash was aware of a
ning all I sensation and that’s remember about that accident.”
There is substantial evidence to indicate the left front of the jury improbable
two vehicles collided. The could find it lighter “spinning” Chevrolet sent the Cadillac counterclock-
wise to the west as much as 70 to 75 feet. fully strong Darling
Plaintiffs’ cases are as in Smith v. & as
Co., supra, 244 56 prece Iowa and the earlier page Report;
dents cited 144 of the Iowa Hackman v. Beck
with, supra, Guyer Elger, 245 Iowa 64 N.W.2d v.
Cir., Iowa,
was made evidence, notwithstanding circumstantial
direct evidence for defendant. There is no dissent
these decisions.
If, plaintiffs’ theory as we hold, of the collision has
rational and support evidence; fact, substantial in the if it fact,
be a might reasonable minds differ to which
opрosing support justify theories has better would not the court taking jury. Security Carpenter cases from the See Co.,
Fire Ins. 1226, 1233, 231; 183 Iowa 168 N.W. Welsch v.
Charles L. & P. Co., supra, Frusch 427;
N.W. Hiatt v. Travelers Co., Ins. *10 586, Stunkard, 582, 3, 655; Hayes v. 233 Iowa
N.W. 33 A.L.R. 245 Iowa 19, 21; Beckwith, supra,
587, 10 N.W.2d Hackman v. Ream, 247 v.
791, 275, 64 278. See also McCarville 795, N.W.2d 476, N.W.2d 480.
Iowa 72 motions for directed
It error to defendants’ was not overrule judgment notwithstanding verdict.
verdict and was motion for new trial asserts it
V. Defendants’ to to the supporting evidence, of submit
error, because lack in specifications negligence plain found four of the five They charge negligent (1) in : turn petitions. Vilas was
tiffs’
ing highway course when such his vehicle a direct failing (2) safety; could not be made with reasоnable
movement way by right meet give turning to the when
to half the traveled lookout;
ing vehicle; (3) failing keep proper the Soreide to failing keep claim (4) to his car under control. Defendants’ completely v. respect
of error in this answered Hackman 791,
Beckwith, supra, 803, 245 801 to 64 N.W.2d Iowa (Division V is there opinion). repeat
283 We need not what
said. pointed out, plaintiff’s
As in the cited we have evidence wholly opposed
case circumstantial as to direct evidence too, here, question
for defendant. There a vital was which roadway 3 and Specifications 2,
side of the the vehicles collided. substantially speci- above, are the same as three of the four properly Hackman submitted there.
fications the case holds were specification here, effect, charges
The first in a violation of sec- 321.314, Code,
tion 1954. It follows from what we have said
Divisions III and IV hereof and from our conclusion it was
proper specification to, to it was not submit above referred specification.
error to submit the first
Perhaps point charge we should out of lack of control Beckwith, supra, curve, in approaching Hackman v.
rather than However, 321.288', an intersection. Code section sub- 3, requires operator
section of a motor vehicle to have it approaching traversing
under control when an intersection public highways dispute as well as a curve. It is without Mr. 321.1, approaching (See
Vilas was an intersection. Code section 54.)
subsection objects in
VI. Defendants’ motion for new trial to jury. They argue grounds for the
struction 7 to the here some
objection instructions read not made on trial before the were jury. entitled to have these Defendants are not added 19b;
grounds here. Rule Procedure Reed v. considered of Civil 440, 442, 443,
Willison, 1066, 1071, 65 N.W.2d ci
tations; Transport Corp., Ehrhardt Ruan n only timely objection to instruction Defendants’ complete governing
that it is not a statement of rule circum say
stantial evidence does not if the in re
gard puts equipoise plaintiffs theories them cannot recover.
We hold the respect instruction is not error in claimed. the 7,
Instruction now, requisite so far as material states the
degree proof in resting a case on circumstantial evidence as express
we it in many Division 1 hereof in recent decisions. say
While the many instruction does not in so words if the
testimony is in equipoise plaintiffs recover, cannot it does re-
quire prove them to theory any their is probable more than other
theory theory based on such evidence. It is clear a that is more
probable opposing than an stronger support one has than a
theory equipoise. left in There is no substantial basis for the
objection urged to instruction
Although point the properly was not raised the
trial we paragraph observe the last 7 is of instruction a repetition
virtual preceding' the one and should have been
omitted. It is repetition well to avoid an instruction because jury may attach importance undue thereto.
VII. There is no merit to defendants’ contention the
testimony of Soppeland Patrolman as to his observations and
measurements scene is by rendered inadmissible Code sec
tion 321.271 which provides: “All reports accident shall inbe
writing and the report written shall prejudice be without to the individual so reporting shall be for the confidential use * * *. department, except A written report filed with * * * department shall not be admissible civil case
arising out of report the facts which based.” is
Bachelder Woodside, 233 Iowa 974, 9 N.W.2d prevent not 321.271 “does 467, is now section holds what
464, made at the scene observation testifying as to his from
officer at other times.” information obtаined and other accident v. Will approval in State apparent with holding noted
This 514, 520. 848, 28 N.W.2d
iams, 838, Gonse, 247 Iowa
Goodman v. highway pa- prevent a 321.271 does
880, 881, holds section at the scene he overhears testifying to statements
trolman from report or informa- were not intended as which
of an accident that while information opinion points out
tion The therefor. public report to the gathering it for patrolman
disclosed statute, “we do not
safety privileged under this department by patrolman, things exclusion to observed
extend such » =»* * ours, somewhat from
Although Michigan statute differs 177, 61 N.W.2d Skrzycki, 338 Mich.
Wallace v. * “* * police offi question does not bar a states: the statute physical him testifying concerning facts observed
cer * * * # * *.” decisions on this £1^ an. Other scene 0f accident
general subject are annotated in
cumulative not ex- Jacobson,
farmer is relevant and material. We should in- such evidence
tend section 321.271 construction render
admissible. *12 Finally $50,000 of
VIII. defendants contend the verdict pecuniary
for the loss to estate is excessive. Soreide’s expectancy life of one
Decedent was 33. The normal years. high school,
age graduated He served six is 35.15
years Navy University in of Iowa one the and attended the State son,
year. adopted age an three. Soreide was marriеd and had employed by
He Oil in 1947 a attend- Standard station May his in a $175
ant at a death 1954 he was “re- month. At company for the a month. and his $468
seller salesman” at He furniture, a 1947
wife owned household he had Chevrolet and enjoyed good health,
savings $1,115. pleasant had a of Soreide very energetic in His
disposition, was and interested his work. $808.
funeral bill was
1153 the rea recovery death is for Soreide’s The measure By meant life his this is of his estate. present
sonable value expected reasonably he would present worth of the estate
the the time of his death his efforts between
to save as a result of may if had lived. To this of his natural life he
and the end for such expense funeral
be added interest on the reasonable Beckwith, Hackman prematurely incurred. See v.
time as it was Healy, 275, 285;
supra, 245 Iowa N.W.2d Jettre v. 294, jury so in 302, 541, 60 N.W.2d 546. The
245 Iowa complaint and no of the instruction.
structed here made in such frequently pointed have
AYe out allowance jury un primarily
a for and we case should not interfere clearly appears prompted by passion
less it the verdict was
prejudice other disregarded ulterior influence or the
evidence or the court’s instructions. See decisions last above may
citations therein. AYehave also said the court disturb appears clearly
verdict the amount of which unconscionable or Ry. Co.,
not warranted the record. Dunham v. Des Moines 578,
240 Iowa in 584. Also that we supported by
terfere with verdicts De sufficient evidence.
Toskey Transport Corp., 45, 4, v. Ruan 40 N.W.2d
8, 17 826; Mills, A.L.R.2d v. General Inc., Booth 49 N.W.2d
Many of our opinions recent that consider a ver- size
dict upon comment greatly purchasing power reduced recognized, however,
dollar. AYehave also there is force
argument for defendant the same token cost
living sharply has risen it so is much more difficult for even the thrifty
most Beckwith, save. v. Hackman supra, page at
of 245 Iowa. This is especially if true taxes are included living.
cost of
Several of our decisions observe that comparison satisfactory
verdicts is not a method for determining an award particular case—each must be determined the evi
dence DeToskey therein. v. Ruan Transport Corp., supra, page
citation at 50 of Iowa; Healy, Jettre at supra, page v.
302 of 245 Iowa; Hackman Beckwith, supra, citations,
page 807 of 245 Iowa.
Nevertheless it proper is to observe that this verdict of nearly large as other verdict to be twice as
$50,000 appears recovery Largest previous to court. case to come this
in a death $27,000 in Hackman slightly under appears to be a ease
in such recognized its upheld the verdict but Beckwith, supra. We
v. DeToskey Ruan proposition. v. a troublesome presented
size 45, upholds for supra, 241 Iowa a verdict Corp.,
Transport Healy, 294, 302, and Dun supra,
$23,325. Jettre Ry. Co., supra, 421, 430, 431, each
ham v. Des Moines $20,000. for
sustains verdict substantially supports here, however,
The record just recovery in the cited. But we think it
larger than cases allowance was made. While the award support not
does and necessarily approximation somewhat of an
in a case such good judgment we are con be left to the
much must evidence, $50,000 for warranted this verdict
vinced disregard $37,500 in in thereof and all excess of reached be
must be held to excessive. days filing opinion, plaintiff-
If, from the of this within judgment shall remit all of the
administratrix excess affirmed, judgment
$37,500 with interest costs the be will and remanded for a new trial. —Affirmed on
otherwise reversed
condition. J., C.
Thompson, Bliss, Oliver, Wennerstrum, JJ., concur.
Peterson, Hays JJ., dissent.
Smith, Larson, respectfully must disagree with (dissenting) Smith, J. —I ease should of in a law course not be filed A dissent majority. of law is at stake. But our duties in principle basic
unless some legal doctrines rather than to attain what to enforce cases is
such justice in the individual case. We best serve us to be to seem following strictly general rules justice ends
the broader likely promote justice. found most been that have procedure appears dealing this consideration when importance and observance of the rules of evidence admission
with the determining jury facts in absence of direct by
applied possible contradiction of direct here, evidence. or,
evidence of circumstantial while less evidence,, for admission rule
Our *14 than, many jurisdictions, designed pos-
strict is still far as so adjudication prevent upon speculation.
sible to mere should It strictly followed. upon damage
The burden one who alleged injury seeks for
in an auto collision is well understood. He must establish both negligence party
the causative of the other and his own free- contributory negligence.
dom from requirement The latter
frequently “no-eyewitness” not so difficult where under the rule
he can an that obeyed invoke inference he statutory require-
ment or self-preservation. followed the instinct of But in- suсh against
ferences avail him not as direct testimony eye- of an Rickabaugh
witness. v. Wabash R. Co., 748 et
seq., 44 Fox, N.W.2d 659. See Loucks v. 261 Mich. 246 N.W.
Of real evidence, course circumstantial if available, proper safeguards
under be admitted question to create a fact for jury against
the even as direct evidence. And I am aware the by majority
authorities cited holding. so But where there
is direct contributory negligence, or direct testi-
mony negativing plaintiff’s freedom from negligence, such safeguards strictly should be on prevent insisted a deci- conjecture
sion based mere or surmise.
The formula adopted we have in Iowa for admission of
such probably evidence is as well and generally understood as
repeated, statement can make it: The circumstances relied
must be such as to make the theory desired reasonably probable, merely possible, and probable more any than other. It has opinions numerous carefully been worded both affirmatively negatively. requires It more reasonable probability any than
other, and expressly excludes mere possibility. It is, defines what not,
and what is admissible and is clearly designed to reduce to danger
a minimum the of a determination fact, trier of guess
based on or speculation.
Of course the in a law action is the trier of fact. But
the court should not abdicate duty its of determining when
quеstion presented duty fact is of forestalling judgments —its
such as the one involved here which clearly are based on conjec- possibility
ture and mere instead of real probability sug- duty proper performance of
gested evidence. The question of law.
requires a of a determination by its fail- majority opinion here errs my judgment
In free- duty respect issue of Soreide’s perform that
ure to un- contributory Vilas testified negligence. Defendant
dom car (or Company)
equivocally the Soreide Standard Oil
came, it west fork of 110. He estimated down the highway from the intersection.” up and a half
“about block right It came says: stop “It didn’t аt the intersection.
He * * through Highway 20 onto *15 at statutory stop sign with undisputed
It is there' was a approached it warning signs on No. 110 as preliminary
least two No. entering 20 from 110 stop A to before No.
No. 20. failure by circumstance negligence per se unless excused some
would be 321.345, suggested, or record. Section
not now conceivable N.W. 1954; Hogan Nesbit, 246 Code, Iowa
Iowa Reedy, 193, 196, 244 N.W.
270; Willemsen v. Mr. So-
Clearly testimony expressly negatived this Vilas contributory negligence destroyed freedom from
reide’s
presumption or inference that have been claimed otherwise “no-eyewitness
up time under the rule.” to that majority
But evi- opinion hоlds there was circumstantial consisting single extending approximately of a mark
dence tire 20, westerly from a Highway feet in the north travel lane of (somewhat by patrol-
point indefinitely) highway described (Grotewald) measurement,
man who made the as “3 feet seven edge of the north 20.” That
inches south of the curb on fix starting point.
of course does not its eastern
.He identified its eastern A end on Exhibit and undertook westerly by
to which show its course the exhibit the scale had
the exhibit itself been drawn another witness.
original A a inch to ten feet. Exhibit was drawn to scale one give majority opinion can
Manifestly plat appearing very inadequate physical idea of the actual situation. a
at best may help general physical appearance but
It “visualize” the patrol- Kurtz,
an unsound item to be treated as evidence. another
man, says mark) (the single “the east end of it tire was about edge sup- feet from north pavement.” (Emphasis
three
plied.) Its east is still distance not stated. point starting (Soppeland) gives the east patrolman
Another four feet point as “a about tire burn” mark, “tire or
of this inches) where .the “from says 4 (later he feet inches”
some That seems to and 20.” of 110 joins the corner
blacktop into starting point. fix eastern attempt to its only bearing admissible as tire-mark
This skid or But it pavement. on the two cars impact of the place of
on the testimony as Vilas’ contradict to weight probability no
adds were companion and his which Soreide
to the direction entirely in being as to easily be mistaken might
coming. Vilas the direction not mistake But he could
his own lane of travel. coming and think it was from the east coming straight a car Highway 110. north on
from the speed admittedly traveling tremendous
The Chevrolet Cad- heavier much the eastward momentum
if overcame it 110 to the Coming down No. 75 feet. hurled it back
illac and swing have to slow down 20 would either on No. it
right turn possible the widen and make
considerably the left order to flimsy evidence affirm on such prepared I west. am not
turn convicting reputable man of inten- judgment verdict upon which to allow here no I find evidence perjury.
tional “reasonably theory probable, to be plaintiffs’
jury to hold any other.” probable more than
merely possible, and iipon is claimed the another basis which it urge
Plaintiffs *16 on ear came from the east plaintiffs’ find
jury properly could No. 110. It involved testi- from the north on 20 instead of
No. with in the vicin- in 1949'familiar roads
mony that Soreide was longer employed no assumption that because
ity and an improvements. unfamiliar with later road area he was
immediate jury foundation upon this insecure contended that
Plaintiffs than he would select a route farther east “infer”
might well No. the fatal scene from the east on 20. 110 and came to
Highway respond “an inference argument defendants that or
To this upon a claimed fact which is itself be based
presumption cannot presumption.” or Doubtless defend- upon an inference
based inaccurately stated. is somewhat argument
ants’ page 182, says A.L.R. in 95 this annotator
The “as a eon- apparently has been courts
phraseology used too way disposing regarded which is of evidence
venient prove ultimate facts at issue.”
remote or uncertain to the basis abidingly
I am convinced that construed it fits so argument “jury might
plaintiffs suggest here for their that the unfamiliarity present conditions
well infer” Soreide’s with gravel of known follow prefer would the nine miles
that he by it No. 20 instead of over to No.
the route down to way of No. 110 is present superiority of the route unquestioned by
apparently plaintiffs. There is no evidence respective gravel portions equi- conditions of the of the two charge his Soreide still lived in and had
distant routes when jury area, it
Company’s business even if be conceded May 21, 1954, permitted to route selection on
should his infer knowledge based on his of conditions in December 1949.
was comparison
There is no basis for of the conditions of the two permitted conjecture
routes. The to even as to that. abidingly competent evidence,
I am convinced there was no direct,
circumstantial or defendant to meet the coming down without
Vilas as to the other car
observing duty stop entering to before No. 20. its they
It plaintiffs’ is misfortune cannot account for the move- purposes night. of Soreide and
ments Evans that fateful superior Company go
Their officer had instructed both “to Spencer, spend night grand opening there attend the * * * following
of a new service station at Sutherland morn-
ing.” luggage Spencer Their found in a later motel where
they registered. Spencer approximately sixty were is miles north
(on Highway 110) thirty-nine and Sutherlаnd north and they west of where met death.
little they City, fifty
"Whether were fact bound for Sioux
sixty west, only wayside miles farther a casual or chance con- (at Ballroom) the Cobblestone inquiry
versation attests. The
perhaps as it immaterial us as now is to them. I think there error in the record prejudicial require which should reversal to hold otherwise is to break down safeguard
and that preserved.
should be
I reverse and remand the case for would retrial both if upon *17 both counterclaims. Of course
main cases and retrial no evidence of Mr. Soreide’s freedom
there was relevant against plain-
contributory negligence, verdict should be directed against defendants.
tiffs their actions
Hays JJ., join dissent. this Larson, appellant. Iowa, appellee, v. W. L. Haesemeyer,
State
No. 48851. 36)
(Reported in 78 N.W.2d