Lockwood v. Wiltgen

101 N.W.2d 724, 251 Iowa 484, 1960 Iowa Sup. LEXIS 584
CourtSupreme Court of Iowa
DecidedMarch 8, 1960
Docket49884
StatusPublished
Cited by22 cases

This text of 101 N.W.2d 724 (Lockwood v. Wiltgen) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lockwood v. Wiltgen, 101 N.W.2d 724, 251 Iowa 484, 1960 Iowa Sup. LEXIS 584 (iowa 1960).

Opinions

Oliver, J.

Plaintiff, Mae Lockwood, was injured when an automobile owned and operated by her husband, R. P. Lockwood, and in which she was a passenger, collided with the rear of a wagon which Orin C. Franke, its owner, was pulling with a tractor. Defendants are Albert M. Wiltgen and Harry Henry Bonnema, the owner and the operator respectively of a dump truck which the Lockwood automobile passed immediately before the collision. The accident happened about noon on March 12, 1958. All three vehicles were traveling east on paved Highway 10, a two-lane highway.

The petition alleged the collision was caused by defendants’ negligence in permitting gravel, rock and aggregate, which their truck was hauling, to fall upon the Lockwood car as it started to pass the truck, shattering the windshield of the car, obstructing the vision of the occupants and diverting the attention of the driver, so that upon completing such passing and returning to the right-hand side of the highway his car collided with the rear of the Franke wagon.

Most of the allegations of the petition concerning the circumstances leading up to the collision were denied by the answer, which alleged also, the sole and proximate cause of such collision was the negligence of Mr. Lockwood in driving at a rate of speed which was excessive and which violated the assured-clear-distance rule, and in failing to have his car under control. When plaintiff rested defendants moved for a directed verdict upon [487]*487various grounds, most of which were not specific. The: court sustained this motion generally, there was a final' order or judgment against plaintiff and she has appealed. ■ ■

I. Appellant complains the order sustaining the motion for directed verdict did not comply with R. C. P. 118 which provides: “A motion, or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally.” Our trial courts are familiar with this rule but do not always observe it. Compliance with it will not be prejudicial to any party because, upon appeal, he may always present any additional grounds in defense of any ruling, or order, which grounds were presented to but not sustained by the trial court. Noncompliance with it frequently places upon an appellant and the supreme court the unnecessary burden of presenting and .considering propositions not determined by the trial court or actually relied upon by appellees. However, such noncompliance has not been held reversible error and is not here so held. ..

II. In determining the sufficiency of the evidence to entitle plaintiff to have the case submitted to the jury the rule requires that it be considered in the light most favorable to plaintiff. At the time of the accident plaintiff was ill with multiple sclerosis, degeneration of the spinal cord and anemia and her husband had taken her away for treatment and was returning her to their home. She testified she was riding • in the front seat of her husband’s automobile, behind defendants’ truck which was loaded with gravel or rock, and some of the load came off the top of the truck and landed on the front of the car, on the windshield. It hit the windshield. “It just looked like a big hunk and felt like a big bunch of rock or something came, right down onto the front of the car; and I guess I passed out, that’s all I can remember.”

On cross-examination she testified: “Q. You didn’t see where it came from? A. Well, it was so close, I don’t know; we was there close to it. I don’t know where it came from exactly. I figured it was off that truck. Q. You figured it was off the truck, but you didn’t see it actually fall ? A. I couldn’t see only just when something was coming hurtling down there at you.”

[488]*488Mr. Lockwood testified defendants’ truck was hauling an uncovered and heaped up load of rock the size of a small hen’s egg and smaller, that his automobile which had been following the truck started to pass it on its left side and as his automobile came alongside the truck some of the rock came off from somewhere and about a small pailful landed on the front portion of his car, striking principally on the windshield which it shattered on the right side, in front of plaintiff. It put some spots on the left side of the windshield — “Well, my wife screamed and I, naturally, looked to see what happened to her. * * * Well, I was trying to find what had scared her so and see, also, if it had came through the windshield and struck her. * * * I was kind of attracted to her and I stayed away from the truck until I could get by it and then I swung over in my right lane.” Mr. Lockwood testified the shattered windshield on the right side and the spots on the left side obstructed his view to a certain extent, and “* * # the things were going on in the car so bad after this crash that I possibly wasn’t looking up that side of the road until I got over in the [right] driveway. There was too much confusion in the car.”

He looked straight down the highway “after I got straightened up in front of the truck.” He then first saw the farm wagon pulled by a tractor 150 to 200 feet ahead of his car and tried to stop his car but was unable to do so completely. It crashed into the rear of the wagon, injuring plaintiff.

Mr. Lockwood estimated the speed of his automobile as it was passing the truck at 65 miles per hour and the speed of the truck at 50 to 60 miles per hour. The estimated speed of the wagon was ten miles per hour. The skid marks made by the Lockwood car as it approached the wagon were approximately 80 feet long.

III. Section 321.460, Code of Iowa, 1958, provides in part: “Spilling loads on highways. No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping therefrom, * *

Appellees do not assert the violation of this statute would not constitute negligence. Upon this phase of the case they contend merely that there was no substantial evidence the [489]*489rock, etc., which struck the windshield of the car fell from their truck and that the evidence for plaintiff “would only permit the jury to speculate as to the source of the gravel.”

The record indicates no vehicle other than defendants’ truck was in the vicinity when the rocks came “hurtling down” upon the front of the ear. Plaintiff testified some of the load came off the top of the truck and again that she “figured it was off the truck.” Her husband testified that, as his car came alongside the truck, some of the rock came off from somewhere and about a small pailful landed on the front portion of the car. Reference to other evidence is unnecessary. It is clear the evidence the rocks fell from the truck was sufficient to require submission to the jury of the issue of defendants’ negligence.

IY. Appellant argues the negligence of the operator of an automobile is not imputed to a passenger who has no right of control over the ear, and the circumstance that the operator is the spouse of the passenger does not alter this rule. This is the settled rule and appellees do not question it. Newman v. Hotz, 226 Iowa 834, 838, 285 N.W. 287; Snook v. Long, 241 Iowa 665, 668, 42 N.W.2d 76, 21 A. L. R.2d 1; Johnson v. Overland Transp. Co., 227 Iowa 487, 498, 288 N.W. 601; Case Note in 9 Drake Law Review 49 et seq., and authorities cited in footnote.

Y.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Schmitt v. Jenkins Truck Lines, Inc.
170 N.W.2d 632 (Supreme Court of Iowa, 1969)
Naxera v. Wathan
159 N.W.2d 513 (Supreme Court of Iowa, 1968)
Glandon v. Fiala
156 N.W.2d 327 (Supreme Court of Iowa, 1968)
Knudtson v. Swenson
155 N.W.2d 756 (Supreme Court of Iowa, 1968)
Henneman v. McCalla
148 N.W.2d 447 (Supreme Court of Iowa, 1967)
Davidson v. Cooney
147 N.W.2d 819 (Supreme Court of Iowa, 1967)
Sayre Ex Rel. Sayre v. Andrews
146 N.W.2d 336 (Supreme Court of Iowa, 1966)
Tice v. Wilmington Chemical Corporation
141 N.W.2d 616 (Supreme Court of Iowa, 1966)
Calkins v. Sandven
129 N.W.2d 1 (Supreme Court of Iowa, 1964)
Comer v. Burns
122 N.W.2d 305 (Supreme Court of Iowa, 1963)
Johnson v. Baker
120 N.W.2d 502 (Supreme Court of Iowa, 1963)
Hardwick Ex Rel. Bartz v. Bublitz
119 N.W.2d 886 (Supreme Court of Iowa, 1963)
Puhrmann v. Lund
117 N.W.2d 495 (Supreme Court of Iowa, 1962)
Mathews v. Beyer
116 N.W.2d 477 (Supreme Court of Iowa, 1962)
Wheatley Ex Rel. Wheatley v. Heideman
102 N.W.2d 343 (Supreme Court of Iowa, 1960)
Lockwood v. Wiltgen
101 N.W.2d 724 (Supreme Court of Iowa, 1960)

Cite This Page — Counsel Stack

Bluebook (online)
101 N.W.2d 724, 251 Iowa 484, 1960 Iowa Sup. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lockwood-v-wiltgen-iowa-1960.