I respectfully dissent.
After stating that the motion for directed verdict presented "many difficult questions," the trial judge assigned two reasons for his ruling. First, he held that Sparano, defendant truck driver, who did not testify, was such an eyewitness as to deprive plaintiff of the benefit of the no-eyewitness rule; therefore, as a matter of law, there was a failure to prove freedom from contributory negligence. This theory is clearly untenable. The collision occurred in the middle of a dark night. By no fair possibility could Sparano have observed what decedent, a mere passenger, did or failed to do for her own safety just prior to the collision. See Jensvold v. Chicago G.W.R. Co., 234 Iowa 627,630, 12 N.W.2d 293, 295, and cases cited. We have gone much further in according a decedent the benefit of the no-eyewitness rule than we are asked to go here. Hayes v. Stunkard, 233 Iowa 582,589, 10 N.W.2d 19, 23; Davidson v. Vast, 233 Iowa 534, 541,10 N.W.2d 12, 17, and cases cited.
The other reason assigned for the directed verdict is that the evidence was circumstantial and plaintiff's theory is not "the only conclusion that can fairly or reasonably be drawn" therefrom. The test of the measure of proof by circumstantial evidence which was applied below has not been followed by us in any of several recent decisions. In this court both sides argue and the majority hold that the applicable rule is, where *Page 171 the evidence is circumstantial, it must be such as to make plaintiff's theory reasonably probable, not merely possible, and more probable than any other theory based on such evidence. I have no quarrel with this rule.
The reasons assigned by the trial judge for the directed verdict are almost identical with those on which a trial court based a like ruling in Hayes v. Stunkard, supra. There, as here, each side had a theory of the accident. There, as here, plaintiff's evidence was circumstantial. The Hayes opinion, in which we reversed the trial court, contains a full discussion, with ample citation of authority, of the required measure of proof by circumstantial evidence. We there reiterate the rule that a "`plaintiff is not bound to negative every other conceivable theory or hypothesis which ingenuity may invent to account for his injury,'" and assert, "The facts may be established by circumstantial evidence as well as, and sometimes better than, by the direct testimony of witnesses." [233 Iowa 586,10 N.W.2d 21.]
It is plaintiff's theory that the proximate cause, or at least a concurring cause, of the collision was the failure of the truck to yield the south half of the pavement to the automobile. I think this theory clearly has such support in the evidence as to present a jury question. But, in any event, I think a jury question was presented even under defendants' theory or any rational theory presented by the evidence.
Defendants' brief states:
"The only rational theory of this case is that * * * the car driven by George Layland drove past the stop sign on Highway 60 and drove into the truck on said Highway 92. This was negligence and the proximate cause of the collision. * * * Doubtless, when the driver of the truck saw that George Layland * * * was not going to stop at the stop sign, and that a crash was likely to occur, he began to pull his truck to the left in order to attempt to get out of the way of the car."
Defendants further say in argument: "The driver of the defendants' truck was swerving his truck to the left out of the north lane of 92 in an attempt to avoid the collision." It is therefore apparent that defendants concede the truck swerved *Page 172 to the left just before the collision. There is no evidence, nor do the majority find, that the Layland car did not stop at the stop sign.
It clearly appears that a curved black mark was left on the pavement, caused by the right front tire of the truck; the mark was forty-seven or forty-eight feet long; the east end or beginning of the mark indicates where Sparano applied his brakes; the point of impact was near the west end of the mark,forty-eight feet east of the junction of 92 and the east arm of60. The jury could well have found that this mark made by theright front truck tire began at least five and one-half feet south of the north edge of the pavement and ended near the point of impact with the left side of the Chevrolet within four feet from the south edge of the pavement.
There were four principal witnesses: Bingaman, the oil station operator; Sheriff Applegate, of Marion county; Davis, the owner of the Chevrolet; Sheriff Clemensen, of Audubon county. All but Davis were wholly disinterested.
Bingaman, at the scene almost instantly, testified:
"I heard a crash and I looked around. There seemed to be a blur on the south side of the road and down below just a little. * * * The marks commenced near the center of the road * * * It curved clear on the south half of highway No. 92. It was just one black mark. * * * This black mark extended south past the center of the road."
Sheriff Applegate arrived within a half hour and made an investigation lasting nearly two hours. He testified:
"There was a dark heavy black line starting at a point on highway No. 92, extending 48 feet in a southwesterly direction from the north side of the highway No. 92, to the south side of this highway. This black mark ended about the center of the south lane [shown to be nine feet wide] of highway No. 92. * * * The black mark commenced from two to three feet from the north side of highway No. 92 and goes at an angle, or in a curved direction, to within four feet of the south side of 92. That is where the black mark ended."
Sheriff Applegate placed marks on a diagram of the scene *Page 173 of the collision showing that the tire mark began about the middle of the north lane and ended about the middle of the south lane of 92.
Davis testified the tire mark ended "somewhere in toward the south shoulder"; near this point "there was a hole dug out in the pavement * * * right up close to the curb * * * this one in particular I noticed, because it was so deep"; the tire mark began "right close to the center line" of 92.
Sheriff Clemensen measured five feet six inches from the north edge of the pavement to the beginning of the tire mark. He also measured ninety-six feet four inches from the stop sign to the large hole in the pavement near the west end of the tire mark. He saw other marks southwest of this hole. On the south shoulder there was a "hole big enough to bury a tractor."
There is considerable testimony about cuts and scars on the pavement, broken glass, oil, water, and wreckage for a distance of one hundred five feet southwest from the end of the tire mark and the large gouge in the paving to where the truck came to rest against a fence about straight south of the stop sign. The three dead bodies and the injured lady were all found near where the vehicles came to rest.
Since the jury might well have found the mark left by the right front truck tire ended near the point of impact with the left side of the Chevrolet, within four feet from the south edge of the pavement, forty-eight feet east of the junction of 92 and 60, the conclusion is surely justified that the collision occurred at a place where, prima facie at least, the Chevrolet had a right to be and the truck had no right. The truck started to veer to the left when its right front wheel was at a point which Sheriff Clemensen measured to be five and one-half feet from the north edge of the pavement. The truck appears to be about eight feet wide. The north lane of the highway is but nine feet wide. It is therefore apparent that more than half the width of the truck was south of the north lane when it started to veer to the left.
The majority concede that the point of contact was "at or very near the west end of the curved black mark on the pavement." However, in reaching their conclusion they practically *Page 174 ignore this fact as well as the evidence summarized in this dissent. They say:
"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 center lines of the pavement. * * * 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."
Needless to say, in my opinion these and other conclusions of the majority are entirely unwarranted. They are not the only conclusions which reasonable minds can reach from all the evidence, viewed in the light most favorable to plaintiff. They are reached only by ignoring practically undisputed evidence that at the place of collision the right front truck tire was within about four feet from the south edge of the pavement.
As the principal basis for their decision, the majority find that, "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 * * *." From this they conclude, "When struck, the Chevrolet was apparently at nearly right angles with the truck." I think the location of the damage to both vehicles is entirely consistent with the conclusion that the collision occurred close to the south edge of the pavement.
While there is some testimony that the damage to the Chevrolet was mainly from its left front to middle, there is much other testimony, and the picture, defendants' Exhibit A, shows it was practically a total wreck. Bingaman testified, "The car was badly wrecked. It was just torn nearly all to pieces." Sheriff Applegate said it was "completely demolished, wrecked." Davis, the owner, testified the Chevrolet was "totally wrecked." When asked what part seemed to be damaged the most, Davis answered, "I could not say. It was all a wreck." Sheriff Clemensen said, "I would call the car a total wreck." The majority opinion itself says, "The Chevrolet *Page 175 car was practically demolished." But in reaching their decision they ignore this statement as well as the above evidence and accept as a verity testimony that the damage to the Chevrolet was mainly on the left side. Even if the damage to the Chevrolet caused by the truck, concededly headed to the southwest, was "mainly from the left front to the middle," this is in no way inconsistent with the conclusion that the collision occurred near the south edge of the paving, as indicated by the marks thereon.
Regarding the truck, Sheriff Applegate testified the damage was "Right in front * * * Probably was damage to the whole front end of the truck." He also said the radiator grill was broken. The picture, Exhibit A, shows this. Davis said "the front end was hurt some" and the radiator grill was broken. Sheriff Clemensen said the damage was "to the grill and radiator and an injury to the [right] fender." Bingaman and Davis testified and the picture, Exhibit A, shows that when the two vehicles came to rest against a fence the Chevrolet was pressed against the right front wheel of the truck. They were "locked together." Before the vehicles came to rest, the truck, apparently at least partly out of control, had pushed the automobile a distance of one hundred five feet. It is entirely proper to conclude that the right fender, or for that matter, the "right front" of the truck, was damaged when the vehicles came to rest, or at least after the original impact.
But even assuming, contrary to the markings on the highway, that at the time of impact the Chevrolet was not entirely in the south half of the road or had not straightened out to head directly east, it does not justify the majority holding that it was "not possible for the driver of the truck to have avoided striking the car." Nor does it justify the directed verdict. As the majority concede, any negligence of the driver, Layland, is not to be imputed to decedent. It would be a defense only if it were the sole proximate cause. Johnson v. McVicker, 216 Iowa 654,657, 247 N.W. 488, and cases cited; Usher v. Stafford, 227 Iowa 443,447, 288 N.W. 432. If Layland were negligent in not yielding the entire north half of the highway to the truck (a conclusion that rests on conjecture), this would not excuse the negligence *Page 176 of Sparano, who is shown almost beyond dispute not to have yielded the south half of the highway to the Chevrolet. At most, it is a case of concurring negligence on the part of Layland and the trucker for which defendants are liable.
The statute in effect since 1860 (now section 5024.02, Code, 1939) required Sparano to yield the south half of the highway to the Chevrolet. His failure so to do makes him prima facie negligent. Kisling v. Thierman, 214 Iowa 911, 914, 243 N.W. 552, and cases cited; McWilliams v. Beck, 220 Iowa 906, 909, 910,262 N.W. 781; 5 Am. Jur. 661, section 286; annotations 24 A.L.R. 1304, 63 A.L.R. 277. It was Sparano's duty to excuse or justify his presence on the wrong side of the highway. 9 Blashfield Cyclopedia Automobile Law and Procedure, Perm. Ed., 446, 451, section 6092; pages 494 ff., section 6113; Hubbard v. Bartholomew, 163 Iowa 58, 63, 64, 144 N.W. 13, 49 L.R.A., N.S., 443. This he failed to do. If it could be said that Code section 5024.02 is not applicable here, I think a finding would be warranted that by attempting to pass the Chevrolet on the left Sparano failed to exercise ordinary care under the circumstances.
Code section 5023.04 required Sparano to have the truck "under control" and to "reduce the speed to a reasonable and proper rate" when approaching and traversing the intersection of these much-traveled highways. I think there is substantial evidence of a violation of this requirement. A car is "under control" when so operated that it can be brought to a stop with reasonable celerity. Martin v. Momyer, 230 Iowa 1158, 1167, 300 N.W. 310,315, and cases cited. Sheriff Applegate testified from his examination that "the right front wheel had drug heavily with the brakes" for forty-eight feet to the point of collision. The truck then pushed the Chevrolet one hundred five feet, largely on the dirt and grass at the side of the road, until the vehicles came to rest against a fence. It cannot be said as a matter of law this was ability to stop with reasonable celerity. It is fair to conclude the truck was at least partially out of control during the entire forty-eight feet, as well as the one hundred five feet.
As to speed, the jury could find Sparano failed to reduce the speed of his truck effectively and was in too much of a *Page 177 hurry to get to Omaha with his load of peaches. The application of the brakes probably reduced the speed but thereby the driver lost at least partial control. It is hard to isolate speed from other elements. The propriety of any speed depends largely upon surrounding circumstances and the driver's care in matters other than speed. Davidson v. Vast, 233 Iowa 534, 540, 10 N.W.2d 12,16, and cases cited. That Sparano made no attempt to guide his truck to the right side of the pavement but chose to attempt to go around the Chevrolet on the left has a proper bearing on the issue of speed. Indeed, the conclusion is warranted that Sparano did not act with the consideration for the safety of the passengers in the Chevrolet required of the ordinarily prudent person and that had he done so, this tragic loss of life would have been avoided.
In support of this dissent, see In re Estate of Goretska,234 Iowa 1080, 13 N.W.2d 432; Hayes v. Stunkard, 233 Iowa 582,10 N.W.2d 19; Davidson v. Vast, 233 Iowa 534, 10 N.W.2d 12; Fraser v. Brannigan, 228 Iowa 572, 293 N.W. 50; Hawkins v. Burton,225 Iowa 707, 281 N.W. 342; Cerny v. Secor, 211 Iowa 1232,234 N.W. 193. In the Goretska case, supra, all the occupants of both vehicles (the only eyewitnesses) were killed. The evidence, wholly circumstantial, consisted principally of the tracks of the two vehicles. But there was some dispute even as to the tracks, which does not exist here. All members of this court agreed that the issues were for the jury and that the court properly refused to direct a verdict for defendant. The Goretska dissent deals with another question in the case. In the Hayes, Davidson, and Hawkins cases the evidence for plaintiff was circumstantial but there was direct evidence of the defendant's version which, if believed, would negative recovery. In each case it was held a jury question was presented. Except on the question of res ipsa loquitur, the majority cite no authority to sustain them.
I would reverse.
*Page 178BLISS and OLIVER, JJ., join in this dissent.