Welch v. Greenberg

Hale, J. Plaintiff brought suit against defendants to recover damages for the alleged wrongful death of Hansina Fredericka Layland, his intestate, caused by a collision between the automobile in which she was riding and a truck. The automobile was owned by Dallas Davis and was being driven by George Layland, husband of deceased. The truck was owned by Sam Greenberg and Elmer Greenberg, doing business under the firm name of Greenberg Fruit Company, and was driven by Tona Sparano, their employee. *161 Plaintiff alleges in Count I of his petition that decedent was a guest in the car which her husband was driving when it collided with the truck, that the driver of the truck was guilty of negligence, and that plaintiff’s decedent was free from any contributory negligence. The grounds of negligence include failure to keep on the right-hand side of the pavement, failure to yield one half of the traveled way, excessive speed, failure to drive at a careful and prudent speed, failure to reduce speed, a greater speed than permitted the driver to bring the truck to a stop within the assured clear distance ahead, failure to keep the truck under proper control, failure to keep a lookout, and driving the truck into the automobile on the left side of the highway. In Count II of the petition plaintiff relies upon the doctrine of res ipsa loquitur for the purpose of establishing his claim. . Defendants filed a general denial alleging plaintiff’s damage was caused solely by the negligence of intestate’s husband as operator of the car in which she was riding and contributory negligence of plaintiff’s intestate. On August 27, 1941, George Layland, his wife, Mrs. Dallas Davis, and Helen Davis, infant child of Mr. and Mrs. Dallas Davis, left Audubon to go to Unionville, Iowa, to attend the funeral of Mrs. Thomas Davis, a sister-in-law of Dallas Davis and niece-in-law of George Layland. Dallas Davis had gone to Unionville earlier in the day and finding his sister-in-law dead had authorized his uncle, George Layland, to use his car to bring the other members of the family to Union-ville. The party left Audubon about 9 o’clock in the evening, with George Layland driving the Davis car, a 1931-model Chevrolet. They traveled on Highway 71 to Highwáy 64, thence east on Highway 64 to Des Moines, and south on Highway 60 through Pleasantville. Upon leaving Pleasantville George Layland was driving, with his wife on the front seat beside him. Mrs. Davis, who was sitting in the back seat with her six-months-old baby, went to sleep about the time they left Pleasantville and so did not see the collision. There is no evidence tha! the car slopped between Pleasantville and the scene of the collision. About two miles south of Pleasantville Highway 60 reaches Highway 92. It there forms a Y, the west arm of which curves *162 to the southwest and runs into Highway 92. The" east arm of the Y is considerably longer, curving to the southeast and joining Highway 92 at the east end of such curve. The two highways then proceed east as one road, and up a hill of considerable size, and on to Knoxville, where Highway 60 turns off to the south and east through Marion, Monroe, and Appanoose counties. Unionville, which was the destination of the occupants of the car, is in Appanoose county. From the point in the Y where Highway 60 starts to curve to the southeast there is an extension of the road running straight south, cutting Highway 92 almost at right angles, but this extension, from the point where it leaves Highway 60 to the intersection with Highway 92, is' not paved but is blacktop. The concrete paving on Highways 60 and 92 is eighteen feet wide. At the point where the two highways join at the east end of the southeast arm of the Y the pavement is about forty feet wide, the four extra feet being on the north side. On Highway 60, a short distance after turning into the southeast arm of the Y from the north there is a “Slow” sign on the right side of the pavement.Several hundred feet farther to the southeast, and about fifty feet from where Highways 60 and 92 unite at the east end of the .curve, there is a “Stop” sign on the right side of the pavement. On the north side of the curve is an oil station. Sixty to seventy-five feet east of the intersection of the two highways is a flume on the south side of the pavement, marked by guardposts running east and west. The roads slope from east, west, and northwest down to this flume, the east slope .being longer and steeper than the slope from the northwest, but in the immediate vicinity of the flume it is comparatively level. The south shoulder of Highway 92, from the west end of the flume to and beyond the intersection with the blacktop extension, slopes to the south, the highway being higher than the adjacent land. While the Chevrolet car was coming from the northwest down the curve of Highway 60 into Highway 92, Tona Sparano whs driving the heavily loaded truck westward on Highway 92. The two cars met just west of the flume and east of the point where the east arm of Highway 60 merges with Highway 92, *163 The time was about 1:15 a. m. of August 28, 1941. The owner of the filling station heard the crash but did not observe the Chevrolet car nor see the accident. By the force of the collision appellant’s intestate, her husband, and the baby daughter of Mrs. Davis were killed and Mrs. Davis was seriously injured. The Chevrolet car was practically demolished. The injury to the truck was on its right front, but the damage to the Chevrolet car was on its left side, mainly from the left front to the middle of the car, the frame of which was buckled inward from the center of the left side. When struck, the Chevrolet was apparently at nearly right angles with the truck. It is shown by the evidence that a black mark on the pavement forty-seven- or forty-eight feet in length, evidently made by the right front tire of the truck with the brake set,- curved in a southwesterly direction from the north half of Highway 92 to the south side of the paving. The witnesses differ as to measurements but all agree that the mark made by the tire began on the north half of the pavement and ended on the south half. There were four witnesses who testified about this black line. Paul Applegate, sheriff of Marion county, arrived on the scene about 1:45 or 1:50 a. m. on the morning of the accident. He testified that the mark commenced two to three feet from the north side of Highway 92 and went in an angle or curve direction to within four feet of the south side of Highway 92. In another part of his examination 'he stated that it ended about the center of the south lane of the highway and about twenty feet west of the flume. Roy Bingaman, who operated the filling station on the north side of the east arm of the Y, testified that he did not know how long the mark was, but it was from thirty to forty feet and ended about forty to fifty feet east of where the east prong of the Y joined Highway 92. He placed the point where the two highways join about forty-five to fifty feet west of the flume. Fred Clemensen, sheriff of Audubon county, did not reach the scene of the accident until the afternoon of the day it occurred. He testified that the black mark on the pavement began five feet six inches from the north edge of Highway 92 and extended southwest forty-seven feet. He stated there were twenty-seven feet plainly showing in length of what he thought was the rubber-burn mark of the tire *164 and that the mark was about in the center of Highway 92. Dallas Davis, the owner of the Chevrolet and the father of the child who was killed, was also a witness. He testified the black mark on the highway began on the north side of the highway, and his statement as to the exact place where it'began is very indefinite. He said it began about the middle line or north of the black line and went across the pavement south and west. He stated he could not well remember where it ended, that he was mixed up that morning. He attempted an estimate, placing it somewhere in from the south shoulder. He was naturally not very certain as to places or measurements. On the south half of the paving, from the west end of this black mark and thence on west and diagonally south to the south edge of the pavement, there were broken glass, cuts and jagged notches and scratches in the paving, apparently made by the dragging of hard metal. Here at the south edge the truck and car left the paving and ran onto the shoulder, which sloped to the south, and came to rest about twelve or fifteen feet west of the last post of the guardrailing and one hundred five feet west of the end of the black mark on the pavement, with the car practically at right angles with the truck. From the place where the car and truck left the paving there were cuts and deeply torn places in the grass on the sloping shoulder. The foregoing are the main facts _ developed by the testimony. At the conclusion of plaintiff’s testimony the court overruled motion of defendants to require plaintiff to elect upon which count of his petition he would stand. Defendants’ motion to take the case from the jury was sustained. There were various grounds in the motion for directed verdict, but as we view the case it is unnecessary to consider other than those grounds of Divisions I and II referring to the lack of evidence of defendants’ negligence. And therefore, for the purposes of this case, we may assume, as argued by appellant, that Mrs. Layland, plaintiff’s intestate, under the no-eyewitness rule was not negligent; and for such purposes we may likewise assume that the negligence of intestate’s husband, the driver of the Chevrolet, may not be imputed to her. I. It is incumbent upon appellant, as plaintiff, to *165 show that the proximate cause of the injury was the negligence of the driver of the truck. Where the evidence is circumstantial, it must be established that there is such negligence as makes the plaintiff’s theory reasonable, probable, and not merely a possibility, and more probable than any other theory. The question here is, Does the evidence sufficiently show appellees’ negligence to make it a question for the jury? In considering this question appellant’s evidence must be viewed in ■ its most favorable light with all reasonable inferences properly deducible therefrom. This case must depend upon the physical facts as circumstantial evidence. It is suggested by appellant in argument that instead of coming down the southeast arm of the Y of Highway 60 the Chevrolet car traveled from Highway 60 straight south over the blacktop extension which joins Highway 92 nearly at right angles. There is no evidence that the Chevrolet car ever traveled on the blacktop road running south from Highway 60, or that it ever made the square turn east from the blacktop or traveled due east on Highway 92. To have done so the Chevrolet must have left the well-marked concrete highway, traveled over the blacktop and made a turn almost at right angles to get into the south lane of Highway 92 going east. This is contiary to any reasonable probability, since the driver of the car was traveling upon Highway 60, which he expected to traverse nearly the full extent of his journey. It is not probable, but merely possible, that a person traveling upon a well-marked thoroughfare, paved with concrete, intended to or did leave the same to travel over a blacktop road and make the unusual left turn to the east. A further reason for this lack of probability is the fact that the right front wheel and the right side of the truck were injured and no injury occurred to its left front side. Had the truck been in the north lane of Highway 92 and the Chevrolet ear in the south lane thereof, in order to produce the results shown in the photographs of the ear and truck the collision must have occurred farther south of the center line of the pavement than appears from the circumstantial evidence; and to strike as it did, it would have been necessary for the truck to be going in a southerly or southeasterly direction, none of which is indicated by the *166 evidence. Such a turn to the south or southeast is impossible to have occurred under the evidence. Likewise, had the Chevrolet ear been in the south lane of Highway 92, and the truck proceeding west in the north lane thereof, and had veered over to the south far enough to strike the car, the injury' would have been to the left side of the truck. The car was carried by the heavy truck in a general westerly direction, the line of travel of the truck. Had the car been struck in the south lane in such a manner as to injure only the right side of the truck, the direction of the two vehicles would have been south instead of west. When found, the vehicles were locked together at right angles. The resxiltant path of "the two cars, the injuries to both, could not have occurred had the Chevrolet been traveling east instead of southeast, as it would travel coming from Highway 60 on the southeast arm of the Y. Hence the theory that the Chevrolet car left Highway 60 and proceeded directly south over the blacktop extension and onto Highway 92 at nearly right angles from the north is untenable. The only other theory of the crash, which theory was considered throughout the trial, is that the Chevrolet car, coming from the northwest down the east arm of Highway 60, was struck at or very near the two center lines of Highway 92. The conclusion which would be drawn under such circumstances would be that the car passed out of the arm of the Y and was proceeding across the road to straighten out in the south lane heading east on Highway 92, so that at the point of collision the Chevrolet car, under the physical facts, must have been almost at right angles with the truck, thé position in which the cars were found when they came to rest on the shoulder south of the highway. Sparano, the driver of the truck traveling west in the north lane of Highway 92, must have observed the close proximity of the ear coming down the east arm of the Y of Highway 60, and to avoid the collision set his brakes, swerving the truck to the left, and the brakes were released at the point of contact, which would be at or very near the west end of the curved black mark on the pavement. • In any event, it seems not possible for the driver of the truck to have avoided striking the car, since part of the Chevrolet car was north of the *167 center lines of the pavement. This emergency attempt to avoid the collision, whether the truck was steered to the left or the setting of the brakes so swerved it, was unavailing. From the position of the car the collision could not have been avoided whether Sparano was south or north of the black center lines. The Chevrolet car, from its appearance as the result of the blow, was apparently partly in the south lane of Highway 92 and partly in the north lane. The injury shows that the Chevrolet car could not have been wholly in the south lane of the highway or it would have received a blow on its side, not a direct blow from the right side of the truck. It is argued that the evidence of the force of the impact indicates negligence as to excessive speed of defendants. The combined speed of the two vehicles colliding with each other at any reasonable speed would necessarily have disastrous results. From the manner in which they struck, at or nearly at right angles, the impact of the heavily loaded and westward-moving truck must have carried both cars in the line of travel of the truck rather than in that of the lighter Chevrolet car. The direction of the movement of the two cars shows that they did proceed to the west and south. • To submit to the jury the question of whether the speed was excessive or was unreasonable under the circumstances, or that the speed was not reduced, would have invited a mere guess based on no valid evidence. We know nothing of the speed of the Chevrolet car. It may or may not have been excessive. There is nothing to indicate that the speed of the truck was excessive. Various cases are cited by appellant where the speed of a car was inferred. This may be done if the circumstances warrant, as we do not think they do here. Among other cases, .appellant cites Hawkins v. Burton, 225 Iowa 707, 281 N. W. 342, which' furnishes little support for his contention. The circumstances relating to the collision on the narrow bridge in that case are so different from those in the instant case as to furnish no parallel. Each case must be determined by its own facts. The statement in tlie Ilawkins case as to estimating speed by the distance traveled would hardly furnish a guide here, since in this ease the weight of the *168 vehicles, tlie slope of the ground, and other differing conditions must all enter into consideration. Nor are the circumstances detailed in Hayes v. Stunkard, 233 Iowa 582, 10 N. W. 2d 19, or the rule quoted as to two reasonable theories of value in determining the question here presented. We believe lhat neither theory as to the line of travel of the Chevrolet car suggested by appellant presented a .jury question; and both theories are untenable as indicating negligence. Giving due credit, as we should, to appellant’s testimony, and resolving it in its most favorable aspect for the appellant, we do not think that reasonable minds could differ on the question of whether or not appellant has established the negligence of the driver of the truck by the circumstantial evidence. In such case, it being the duty of the appellant to establish that the proximate cause of the damage was the negligence of appellees’ driver, there could be no recovery and the ruling of the district court on the motion would therefore be correct. We do not find that the evidence indicates or is sufficient to warrant the submission of the case to the jury on the question of speed. Appellant and appellees devote considerable discussion to the questions of the no-eyewitness rule and lack of contributory negligence of appellant’s intestate. The questions are fully and ably discussed in the briefs, but since we fail to find proof of appellees’ negligence sufficient to warrant submission to the jury it is unnecessary for us to consider those matters here. II. We do not think that the question of res ipsa loquitur enters into this case. We have frequently ruled that in order that this doctrine may apply the instrumentalities causing injury and damage must be in the exclusive control of the person charged, and such is argued by appellees herein. Some of our most recent cases reiterate this doctrine. See Whetstine v. Moravec, 228 Iowa 352, 368, 291 N. W. 425, 433, where the court says: “The necessity of complete and exclusive control of the instrumentality, for the application of the res ipsa loquitur rule, has been repeatedly referred, to by the court.” (Citing cases.) *169 See, also, Pearson v. Butts, 224 Iowa 376, 276 N. W. 65. In our most recent case of Rodefer v. Clinton Turner Verein, 232 Iowa 691, 694, 6 N. W. 2d 17, 19, we refer to Whetstine v. Moravec, supra, and quote the foregoing statement therefrom. See, also, Sutcliffe v. Fort Dodge Gas & Elec. Co., 218 Iowa 1386, 257 N. W. 406. The foregoing authorities, with others from various jurisdictions, are all cited by appellees and the. rule seems well established. It is apparent from what we have heretofore stated that the instrumentalities resulting in the deaths and damage were not under the exclusive control of appellees or the driver of the truck, since the car was under the exclusive management and control of the husband of appellant’s intestate. Further, to apply the rule of res ipsa loquitur it must appear more probable that the accident and damages were brought about by appellees’ negligence than by any other cause. Since we have held that the circumstantial evidence in this case does not warrant the. submission of the question of appellees’ negligence there could be no recovery on this count. As the foregoing case of Whetstine v. Moravec holds, if the probabilities are even on equal footings, this is not sufficient. As stated therein : “It is, of course, not sufficient to show that the negligence charged might fairly and reasonably have caused the injury, if the circumstances shown indicate an equal probability that it was due to some other cause.” [228 Iowa 363, 291 N. W. 431.] And such is the holding of Swaim v. Chicago, R. I. & P. Ry. Co., 187 Iowa 466, 174 N. W. 384 [certiorari denied 252 U. S. 577, 40 S. Ct. 344, 64 L. Ed. 725], Appellees further cite 45 C. -T. 1213, section 780, and Rodefer v. Clinton Turner Verein, supra, which cites Tisher v. Union Pac. Ry. Co., 173 Iowa 567, 570, 155 N. W. 975, 976, wherein the rule is stated as follows: “The causal connection between the injury and the negligence of the defendant may be proved by direct or circumstantial evidence. If the latter, it must be something more than consistent with plaintiff’s theory of how the accident *170 occurred. It must be such as to make that theory reasonably probable, not merely possible, and more probable than any other hypothesis based on such evidence.” We conclude that as to both counts the ruling of the court, on the motion to direct verdict was correct and that the cause •should be, and is, affirmed. Appellant’s motion to strike amendment to abstract, submitted with the case, is overruled. — Affirmed. Smith, C. J., and Mulroney, Miller, and Wennerstrum, J"J., concur. ' Bliss, Oliver, and Garfield, JJ., dissent. Mantz, J., takes no part.