Thuente v. Hart Motors , 234 Iowa 1294 ( 1944 )

Being unable to agree with that part of the majority opinion holding that the lower court erred in sustaining a motion to direct a verdict in favor of defendants on Count I of the petition (being the negligence count), I therefore respectfully dissent to that portion of the opinion and concur in the other parts thereof.

I. Count I of the petition was based upon negligence; Count II, upon recklessness; both resulting in damages claimed. The majority opinion holds that the lower court erred in submitting to the jury the claim based upon recklessness and also erred in not submitting the claim based upon negligence. In other words, the majority opinion holds that the lower court erred in both ways.

As set forth in the majority opinion, plaintiff was injured while riding in a truck then engaged in picking up scrap iron to be used for war purposes. There were eight or ten men in the truck, all volunteers, engaged in the same patriotic purpose. The truck belonged to Hart Motors. Frank Hart was the driver at the time of the accident. His services, along with the use of the truck, were donated.

While rounding a turn to the right from paved highway No. 71 to a graveled road, the rear end of the truck box turned on its side, plaintiff jumped, and was injured.

When plaintiff rested, defendant moved for a directed verdict on Count I and stated as grounds, "for the reason that there is no competent evidence or proof on which to submit to the jury any of the allegations of the petition." Also, "The record in fact fails to show any competent evidence or proof of negligence on any issue presented under the allegations of Count I which could possibly be submitted to the jury."

The motion was sustained by the court upon the theory that plaintiff when injured was a guest and therefore there could be no liability for negligence. This ruling was somewhat peculiar in that at the same time the court was permitting the jury to pass upon the claim in Count II that plaintiff was a guest.

While the court did not direct a verdict on the grounds set forth by defendant as to Count I, yet, if the record showed that the motion should have been sustained, it is immaterial what grounds the court gave for its ruling. If there was no case made under the record, the court should have granted the motion.

In ruling on the motion of the defendant to direct a verdict on Count I, the court would be bound to follow what is termed the most-favorable-evidence rule. To this rule, however, there are certain well-defined exceptions. McGlade v. City of Waterloo,178 Iowa 11, 156 N.W. 680; Scott v. Hansen, 228 Iowa 37, 289 N.W. 710; Ward v. Zerzanek, 227 Iowa 918, 289 N.W. 443; McDaniel v. Stitsworth, 224 Iowa 289, 275 N.W. 572; Donahoe v. Denman,223 Iowa 1273, 275 N.W. 154; Bowermaster v. Universal Producing Co., 221 Iowa 831, 266 N.W. 503; Bauer v. Reavell, 219 Iowa 1212, 260 N.W. 39.

The case of McGlade v. City of Waterloo, supra, 178 Iowa 11, 13, 156 N.W. 680, 681, is a leading authority on the matter of when it is the duty of the court to direct a verdict. The opinion was written by Deemer, J., and was handed down in 1916. We quote therefrom:

"The only question presented by this appeal is the sufficiency of the testimony to take the case to a jury. And the real point of inquiry is whether or not there was enough testimony so that, had a verdict been returned for plaintiff, the trial court would not have been justified in setting the same aside, upon the record made.

"We have repudiated the scintilla doctrine, and announced the rule that a trial judge should sustain a motion to direct whenever, considering all of the testimony, it clearly appears to him that it would be his duty to set aside a verdict if found in favor of the party upon whom the burden of proof rests. Meyer Bros. v. Houck, 85 Iowa 319; Hurd Wilkinson v. Neilson,100 Iowa 555; Cherry v. Des Moines Leader, 114 Iowa 298, and cases cited.

"Of course, this rule must not be so applied as to deprive the jury of its function to ascertain the facts, upon a fair dispute in the testimony, and the doctrine now generally applied is that if, at the conclusion of plaintiff's testimony, there is enough to take the case to a jury, the defendant cannot, after introducing his evidence, claim that there is nothing for a jury to determine. Bever v. Spangler, 93 Iowa 576-608; Phillips v. Phillips, 93 Iowa 615; McLeod v. Chicago N.W.R. Co., 104 Iowa 139; In re Betts' Estate, 113 Iowa 111; Gradert v. Chicago N.W.R. Co., 109 Iowa 547. But there are some exceptions to this rule. For example, if the testimony offered by the party having the burden, is in conflict with undisputed facts, and especially with physical facts which are a verity, or is such that, under all the circumstances, it cannot, in the nature of things, be true, or is such as that it is entirely and wholly inconsistent with any other theory than that the witnesses must have been mistaken, the trial court is justified in directing, and it is its duty to direct, a verdict for the other party. Artz v. Chicago, R.I. P.R. Co., 34 Iowa 153; Payne v. Chicago, R.I. P.R. Co.,39 Iowa 523; Bloomfield v. Burlington W.R. Co., 74 Iowa 607."

In the case of McDaniel v. Stitsworth, supra, 224 Iowa 289, 293, 275 N.W. 572, 574, in an appeal by plaintiff from an order directing a verdict against him, the court used the following language:

"It is true that on a motion for a directed verdict, plaintiff is entitled to have the evidence considered in its most favorable light to him. If, however, the testimony and physical facts show that a defendant is not guilty of any negligence which is the proximate cause of an injury, and that none of his acts contributed thereto, then it becomes the court's duty to sustain a motion for a directed verdict. McGlade v. Waterloo, 178 Iowa 11, 156 N.W. 680; First Sav. Bank v. Edgar, 199 Iowa 1136, 199 N.W. 1011; Van Gorden v. Fort Dodge, 216 Iowa 209, 245 N.W. 736; Hittle v. Jones, 217 Iowa 598, 250 N.W. 689; May v. Hall,221 Iowa 609, 266 N.W. 297; Reid v. Brooke, 221 Iowa 808, 266 N.W. 477.

"In Hittle v. Jones, 217 Iowa 598, loc. cit. 602, 250 N.W. 689, 692, this court said:

"`When the evidence, physical facts, and surrounding circumstances warrant it, the district court may direct a verdict for the defendant * * *. Van Gorden v. Fort Dodge, 216 Iowa 209, 245 N.W. 736.'"

It is elementary that in claims for damages for negligence the plaintiff must show: (1) negligence of defendant (2) that such negligence was the proximate cause of the injuries complained of, and (3) that the plaintiff was free from contributory negligence. All are affirmative matters. It is my opinion that plaintiff failed in the burden as to these three essentials, or some of them, to such an extent as to present a jury question.

First, as to his showing of negligence. Three grounds of negligence were pleaded:

(a) That he failed to drive the truck at a careful and prudent speed not greater than was reasonable and proper having due regard for the fact that he was turning off a paved highway onto a graveled highway, and also having regard for the fact that the box or rack contained a cylinder as above set out weighing one thousand pounds or more, and that some of the occupants of the box or rack were sitting upon the top rail thereof.

(b) In driving said truck at a speed of thirty-five miles per hour while making the turn.

(c) In failing to keep said vehicle under control and reduce the speed to a reasonable and proper rate when making a sharp turn.

A consideration of these items calls for an analysis of the evidence. No witness gave testimony that the speed of the truck was dangerous, excessive, or unreasonable. No witness testified that there was lack of control. There were certain witnesses who placed the speed of the truck as it approached the turn at thirty-five miles per hour. Plaintiff's witness Sayre says he was 145 feet west and 225 feet north of the intersection and he gave the speed at twenty-five to thirty miles per hour. He testified that his estimate was based upon a test made about five months after the accident by watching a car driven at thirty-five miles per hour. The method used by him to determine the speed of the truck was rather novel. We quote from his testimony:

"I first determined or decided for myself that the truck was going twenty-five to thirty miles an hour when I began to think about it a couple of months ago when Mr. Burington asked me about it, and that was the first time I ever gave the matter of speed any thought. * * * Q. Now these figures of speed, George, aren't they based upon your recollection of what you saw that day? A. Yes, and from what I did the next day after you asked me. Q. What did you do the next day? A. I went out with Loren Moding in the car and he went along there and I stood out there and he went thirty-five miles an hour and from that I deducted how fast they were going."

It will be noted that as a witness he does not say where he stood — simply, "I stood out there." He fails to state that he stood in the same position he was standing on October 10, 1942. He testified about May 20, 1943, and he says that he made the test "a couple of months ago." Here we have a witness who gives an estimate of speed based upon a so-called test made months afterward and we have no showing whatever that the conditions were similar. This witness thinks the truck slowed down some before attempting to make the turn.

Witness Watke was with Sayre and said the truck went thirty to thirty-five miles per hour but that it slowed up as it came to the corner; that the truck made the inside turn. Witnesses Sayre and Watke were part of a squad of football players under coach Luschinger, who was a witness for plaintiff. He saw the truck; nothing unusual in its movements; said that it was going from fifteen to twenty-five miles per hour, that at the corner there was quite a decrease in speed; that the truck made the turn at the corner in the natural way. Otto Bjornstad, Jr., for plaintiff, was on the truck. He said that before the turn its speed was twenty-five to thirty miles per hour; speed was reduced before the corner to twenty to twenty-seven miles per hour.

The other witnesses for plaintiff who testified as to the speed and operation of the truck were Isabelle Graff, Colletta Graff, and Mrs. Kindlespire. At the time of the accident these three witnesses were in the park north and east of the highway. This park is from eight to twelve feet lower than the pavement. The park was wooded, with many trees and shrubbery; there was a hedge between the road and the park; the road turned into was west of the pavement and was lower; it could not be seen from the park. Colletta Graff was in the park and over a block away; stated that she watched the truck going thirty to thirty-five miles per hour until it was one-half block from the accident; told of trees and shrubbery along the bank and a hedge there. She did not see the accident.

Isabelle Graff was in the park exercising a dog. She said the truck was going thirty to thirty-five miles per hour until it "upset." She does not drive a car; can judge speed; truck was going fast and "turned over." She said that she was from one to one and one-half blocks away; later she contradicted herself by saying she was one-half block away; that the park was sunk ten to twelve feet below the road. As to speed she said, "We would have to guess or estimate and that is more or less woman's intuition"; that this was her one experience in estimating the speed of a truck under the circumstances. She did not think the speed dangerous but thought it too fast to make the turn. Said, "Maybe that is woman's intuition." Said she could not see the graveled road or pavement. Her testimony is contradictory, improbable, and is in direct variance with the physical facts.

Mrs. Kindlespire was in the southwest corner of the park with three little girls at the swing; park eight steps lower than the road and the swing behind shrubbery. The following is from her testimony:

"From the time I first saw the truck south of the bridge to when it started to make this turn its speed did not slacken up any. I have driven a car. I have never driven a truck. I have ridden in a truck very much with my husband, who works on a truck. In my judgment the speed of the truck from the time it left the bridge until the time it started to make the turn was thirty-five miles an hour. When the truck was coming down the road I didn't have any idea it was going to make the turn until it slammed on the brakes and slid around the corner. As the brakes were put on, the truck kind of skidded around the corner and the box flew off and the men flew with it."

Like the testimony of Isabelle Graff, that of Mrs. Kindlespire is abounding in contradictions, improbabilities, and is sharply at variance with the physical facts as shown by the record.

She says she had no idea the truck was going to make the turn until it "slammed on the brakes and slid around the corner." Also, the "truck kind of skidded around the corner and the box flew off and the men flew with it." Mrs. Graff said that at the turn the truck turned over, then the box went off, but could not remember the truck's going over.

In my judgment, neither of the two women who testified to seeing the accident was in a position to give credible testimony as to what happened at the time plaintiff was injured. The physical facts contradict them absolutely. The truck slowed down for the turn; all of the witnesses save Isabelle Graff and Mrs. Kindlespire so testified. The brakes were not slammed on, there was no skidding of the tires, the truck did not upset, the box did not fly off, the men did not fly through the air. Plaintiff says that he jumped. He was the only one injured.

It seems to me that in applying the physical-fact rule none of the three women witnesses was in a position to give credible testimony as to what took place. All of them were in a park much lower than the highway, with shrubbery, trees, and a hedge between them and the corner; they were not in a position to see the pavement or the graveled road turning away from them and to the west. See Petersen v. Detwiller, 218 Iowa 418, 255 N.W. 529. In the cited case the driver stated his speed was twenty-five miles per hour; plaintiff tendered a witness who claimed a greater speed of from thirty-five to forty miles per hour. This court held that this offered testimony in reference to the speed of the truck was not very convincing. In that case the claim was based upon recklessness. This court affirmed a directed verdict for defendant, saying that it was doubtful as to whether the record showed a plain case of negligence.

There was no evidence of lack of control; the evidence is exactly to the contrary. The driver was traveling at an ordinary rate of speed; he slowed up as he approached the turn; he made a natural and usual turn on the inside of the graveled road; as the rear of the box began to slip someone yelled or "hollered" to the driver to stop and he did so within a few feet, and he was out of the truck and on the ground before the rear end of the box went over; the truck did not upset and the wheels did not skid or slip.

It seems to me that under the record there exists a failure to show the essentials of negligence — that is, the want or lack of such care as the ordinarily or reasonably prudent and careful man would exercise under similar circumstances.

II. Not only does the record fail to show negligence on the part of the defendant driver but it fails to show that his claimed negligent acts were the proximate cause of the injuries suffered by the plaintiff. "Proximate cause" is that cause which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces injury, and without which injury would not have occurred. Wine v. Jones, 183 Iowa 1166, 162 N.W. 196, 168 N.W. 318; Rauch v. Des Moines Elec. Co., 206 Iowa 309, 218 N.W. 340. In the Rauch case the court held that there must be a causal connection between the alleged "negligence" and the injury sustained and that the burden was upon the plaintiff to so show. It seems to me that the acts claimed to be negligent were not so in fact, and further, that they were not the direct and proximate cause of the plaintiff's injuries. Hart Motors had secured the truck a few days before. It had a demountable combination box and stock rack. This box was fastened underneath to the chassis by large U-bolts. The purpose of these was to prevent the box from slipping from the frame. The man who fastened the box to the chassis testified that he used a wrench to tighten the U-bolts. After the accident it was found that the rear U-bolt was not in place; neither could it or any broken parts be found at or about the place of the accident, although search was made therefor. What had become of it was a matter of conjecture. With it unfastened and not in place the box was insecure and its weight was such that a large load with a tendency to shift and change position would likely get out of position, and this would be particularly true when the vehicle was rounding a curve. There was nothing in the record to indicate in the slightest degree that the driver or the other occupants of the truck had any intimation that the fastening was out of place or was broken or lost. This fastening was beneath the truck and could only be seen by getting underneath. The truck had been in use all day and nothing had happened to indicate that there was anything wrong with the fastening of the box to the chassis. The loss or breakage of the U-bolt could hardly have been foreseen. After the accident the front U-bolt was in place; only the rear one was gone, and its absence caused the back end of the box to slide and tip over. The front end did not tip or slide. It seems to me that it is too clear for argument that the loss of the U-bolt was the cause of the box tipping over. Its absence was the intervening cause. Had the break been caused by speed at the turn, the broken U-bolt would have been found. Likewise, the speed would have broken the front bolt. It seems to me that the causal connection between the alleged acts of negligence and the injuries of plaintiff was broken by the intervening cause, the loss of the U-bolt which fastened the body to the chassis. The box was long and heavy — a one thousand-pound compressor, together with at least eight men, was in it; thus the weight or load was liable to shift from time to time, especially on uneven surfaces; the graveled road turned into was rough and bumpy at the turn and was lower.

1 Thompson on Negligence 153, section 156, states:

"* * * proximate cause is probable cause; and that the proximate consequence of a given act or omission, as distinguished from a remote consequence, is one which succeeds naturally in the ordinary course of things, and which therefore ought to have been anticipated by the wrong-doer * * *."

See Watson v. Dilts, 116 Iowa 249, 89 N.W. 1068, 57 L.R.A. 559, 93 Am. St. Rep. 239; Swaim v. Chicago, R.I. P. Ry. Co.,187 Iowa 466, 471, 174 N.W. 384, 386 [certiorari denied 252 U.S. 577, 40 S. Ct. 344, 64 L. Ed. 725]. In the last-cited case, Weaver, J., speaking for the court, used the following language:

"It is true that if, under all the proved circumstances, the conclusion that the injury was the proximate result of defendant's negligence is no more reasonable or probable or likely than that it was brought about by some other cause, for which the defendant is not responsible, then, of course, the plaintiff has failed to establish a fact without which he cannot recover." (Italics supplied.)

Applying this quoted language to the facts in this case, let us see what the situation is.

Plaintiff claims as negligence a speed of thirty-five miles an hour in making the turn, lack of control, and failure to reduce speed to a reasonable and proper rate at the turn. I do not think that there is any credible testimony to establish such claims. The evidence without dispute shows that the box was securely fastened to the chassis a few days before; that after the accident the fastening could not be found. It is quite evident from the record that when the turn was being made the weight of the body and the load caused the unfastened end to slip and slide. Here was a condition which would not reasonably have been foreseen. The truck had been in use all day, making trips and gathering loads of scrap, and there is not a word in the record to indicate that anyone in or about the truck had any intimation, knowledge, or warning that the U-bolt fastening was not in place. The many loads hauled by this truck (being a record load of thirteen thousand pounds) could have caused such a strain on the fastening as to have caused it to fall out or become broken.

The absence of the U-bolt at or near the place of the accident, either broken or otherwise, as shown by the record, demonstrates with greater certainty the real cause of the accident as against the claim of plaintiff that the overturned box was caused by negligent acts of the operator of the truck. Here we have shown an intervening cause unrelated to the claimed negligent acts which proximately caused the accident and the injury to plaintiff.

Plaintiff in pleading alleged freedom from contributory negligence. He had the burden of so showing. This court has in many cases defined such term. One of the leading cases of this state on that question is Banning v. Chicago, R.I. P. Ry. Co.,89 Iowa 74, 86, 56 N.W. 277, 279. There the court said:

"The rule is that, if the injured party contributed in any way, or in any degree directly to the injury, there can be no recovery."

The rule there laid down was cited in express language in the case of Towberman v. Des Moines City Ry. Co., 202 Iowa 1299, 211 N.W. 854.

In the case of Rogers v. Lagomarcino-Grupe Co., 215 Iowa 1270, 1273, 248 N.W. 1, 2, the court approved the following instruction defining contributory negligence:

"`By contributory negligence is meant such negligence or want of reasonable care on the part of the party injured as was a co-operating cause and directly instrumental in causing or bringing about the damages in question upon her, and may consist in her voluntarily exposing herself to danger, or in failing to avoid danger when the danger was known to her, or, when by the exercise of reasonable care and prudence on her part she would have discovered the danger in time to have avoided it; and it follows from this that although the defendant may have been guilty of negligence at the time, yet, if the plaintiff through her own negligence contributed to her damage, plaintiff can not recover.'"

See, also, 102 A.L.R. 417, 420.

In the case of Hellberg v. Lund, 217 Iowa 1, 2, 250 N.W. 192, this court had before it the claim of the injured party that contributory negligence, if shown, must be the proximate cause of the injury to prevent recovery. In that case, Claussen, J., in setting forth the rule, said:

"In the case of Towberman v. Des Moines City Railway Co.,202 Iowa 1299, 211 N.W. 854, Mr. Chief Justice Albert reviewed the decisions of this court bearing on the relationship that must exist between negligence on the part of plaintiff and the injuries sustained by him to bar recovery. More recently the question has been examined by Mr. Justice Kindig in the case of Hogan v. Nesbit, 216 Iowa 75, 246 N.W. 270. This court is now firmly committed to the rule that such relationship must be causal. The rule as it now stands is elementary in simplicity, and we are not disposed to cast doubt on it by overnicety in distinctions. Negligence which causes or contributes to cause an injury bears causal relationship to such injury, and certainly negligence, but for which the injury would not have occurred, is causally related to the injury."

See Hamilton v. Boyd, 218 Iowa 885, 256 N.W. 290; Spooner v. Wisecup, 227 Iowa 768, 288 N.W. 894. However, contributory negligence to bar recovery need not be the proximate cause. Swan v. Dailey-Luce Auto Co., 221 Iowa 842, 265 N.W. 143, and cases there cited.

The truck was from twenty-two to twenty-three feet long and had on it a combination grain box and stock rack, the latter being on top of the other. The floor of the box was four feet from the ground; the top of the rack was five feet from the floor, making the rack nine feet from the ground. Plaintiff was astraddle the rack and sitting on top of it. He was a drug clerk and there is no evidence to indicate that he was used to or familiar with the operation of a truck. Sitting or standing in that position could hardly be called a place of safety. Sitting astraddle a board rack nine feet from the ground made it a place of hazard. True, others were on and about the truck, but that would not excuse him from the need to exercise care for his own safety. When the box began to slip he jumped and was injured. No others jumped and none was injured. As a witness he said that he guessed that he should not have jumped. The cab in which the operator was riding was a part of the chassis. Its rear window was obscured by the stock rack; the operator had no way of knowing the positions of the men on the truck; he had no control over any of them; they joined the squad or left as they saw fit. The driver simply drove as directed from the scrap headquarters. Plaintiff must have known that to leave the security of the box floor and take an insecure and unsteady position on top of a stock rack five feet higher was a hazardous undertaking in the case of an accident. Had he remained on the floor he would not have been injured. It seems to me that his act in getting on top of the truck contributed in a material degree to his injury, and having done so he is precluded from recovery. Applying these uncontroverted facts to the rule of this court as set forth in the case of Banning v. Chicago, R.I. P. Ry. Co., 89 Iowa 74, 81, 56 N.W. 277, 279, where the court said: " * * * if the injured party contributed in any way, or in any degree directly to the injury, there can be no recovery," it seems to me that the plaintiff cannot recover herein; his conduct contributed in a material degree and he cannot recover.

I would affirm.