Mora v. Savereid

222 N.W.2d 417
CourtSupreme Court of Iowa
DecidedOctober 16, 1974
Docket56198
StatusPublished
Cited by20 cases

This text of 222 N.W.2d 417 (Mora v. Savereid) 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
Mora v. Savereid, 222 N.W.2d 417 (iowa 1974).

Opinion

LeGRAND, Justice.

Plaintiff sustained serious personal injuries in a pedestrian accident while she was crossing the intersection of 6th Avenue and Walnut Street in Des Moines on October 27, 1971. Her subsequent action to recover damages resulted in a jury verdict in favor of each of the defendants. Plaintiff says *419 she should have a new trial because of various errors during the course of the trial. We affirm the trial court.

Before setting out the specific issues presented by this appeal, we present the circumstances which culminated in this accident. While walking home from her place of employment at the height of the rush hour, plaintiff, along with others, stopped at the northeast corner of the intersection waiting for the traffic light to change in her favor. She intended to cross from the northeast corner to the northwest corner of the intersection. Defendant, Theresa Sav-ereid, was also in the group waiting to make that same crossing. Before the light changed, an armored truck owned by defendant Lewis System of Iowa, Inc. and driven by defendant Carl Jorgensen crossed Walnut Street from the south to the north. Because of congested traffic ahead, this truck was compelled to stop while partially blocking the east to west crosswalk. It was still there when the light changed in favor of east and west traffic.

When plaintiff and Miss Savereid started to cross the street, it was necessary that they circle around behind the stopped armored truck. In doing so, Miss Savereid walked out of the crosswalk into the trav-elled portion of the intersection. Plaintiff stayed within the crosswalk. At this same time, a bus owned by defendant Iowa Regional Transit Corporation and driven by defendant Stanley Leo Kaloides, which had also been waiting for the light to change, started through the intersection from east to west. The bus overtook and was passing Miss Savereid when she apparently veered to her left and was struck by that vehicle. The impact threw her heavily to the street. She sustained severe personal injuries, but that is not an issue in this appeal. In some inexplicable manner plaintiff, too, ended up lying in the street, severely injured. How this happened is the determining factual circumstance in this case.

Plaintiff’s theory is that, when Miss Sav-ereid negligently walked into the side of the bus, the resulting impact threw her against plaintiff, knocking both to the street. Other witnesses stated categorically there was no contact between Miss Savereid and plaintiff. There was also circumstantial evidence as to the relative positions of these two ladies both before and after the acci® dent from which the jury could conclude they had no physical contact. Other facts will be referred to as they become material in our discussion of the issues.

Plaintiff raises the following issues: (1) error in instructions as hereafter discussed; (2) error in refusing to permit plaintiff’s motion to amend the pleadings to conform to the proof after the close of the evidence; and (3) a claim that plaintiff did not receive a fair trial.

I. Plaintiff makes five complaints concerning the instructions. Three deal with the trial court’s refusal to submit certain specifications of negligence, one against the bus and its driver, one against the truck and its driver, and the third against Miss Savereid. The remaining two are concerned with the propriety of instructions on burden of proof and an alleged misleading instruction about proximate cause.

II. The three errors said to have resulted from the trial court’s refusal to submit certain specifications of negligence may be discussed together.

The governing law is well settled and the parties do not argue otherwise. All issues which are pled and for which there is substantial support in the evidence must be submitted. It is error not to do so, just as it is error to submit those which do not conform to both these conditions. Wroblewski v. Linn-Jones F S Services, Inc., 195 N.W.2d 709, 711 (Iowa 1972); Adams v. Deur, 173 N.W.2d 100, 113 (Iowa 1969); Cavanaugh v. Jepson, 167 N.W.2d 616, 619 (Iowa 1969). The specific question to be answered here is whether there was substantial evidence to support the alleged negligence. The trial court ruled against plaintiff in each instance, and properly so.

*420 Plaintiff insists the issue of speed should have been submitted as to the bus company and its driver. The evidence shows without dispute that the bus was stopped waiting for the light to change. It ¿then started up and struck Miss Savereid when it had traversed approximately one-half of the intersection. Plaintiff correctly argues the question of speed must be judged by the existing circumstances. Plaintiff further argues that any speed, no matter how slight, might be negligence under some facts. This, too, may be conceded as an abstract proposition. The difficulty with plaintiff’s position is that there is no evidence from which the speed of this vehicle could be determined. The driver was never asked about it. One witness, John Smith, said the bus “could not have been going 10 miles an hour” and that it was “probably less.” Another witness, Wallace Wood, said the bus was going the normal speed that a vehicle goes when it starts up from an intersection. Under that kind of record, any finding by the jury that the speed of the bus was not reasonable and proper under the circumstances would have been without evidentiary support. The trial court therefore was correct in refusing to submit the issue of speed.

Plaintiff also asserts it was reversible error as to defendant truck and its driver not to submit the question of lookout. As already related, the truck was stopped partially blocking the pedestrian crosswalk. It had been in this position for an appreciable interval waiting for traffic ahead to start forward.

Plaintiff does not claim the truck driver could have averted the accident by any lookout he might have made once he crossed the intersection. Her argument rather relates to his conduct before he did so. She says a proper lookout at that time would have advised the truck driver he could not have cleared the intersection and, presumably, that this would endanger pedestrians seeking to cross the street.

When the truck crossed Walnut Street, the traffic signal was green in its favor. In addition, a traffic policeman waved northbound traffic through the intersection. There is no evidence that defendant truck driver could have discovered by any additional lookout that he would be unable to clear the crosswalk before the traffic signal changed. This would depend on conditions at least a block ahead — conditions which he could not observe and which no measure of lookout would have then disclosed.

The trial court correctly refused to submit lookout as to the owner and driver of the armored truck.

The last alleged error based on submission of specifications of negligence deals with the conduct of Miss Savereid. It will be recalled she crossed 6th Avenue by walking behind the armored truck. In doing so she left the crosswalk, ventured into the travelled portion of the street, and was struck by the bus.

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Bluebook (online)
222 N.W.2d 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mora-v-savereid-iowa-1974.