(dissenting in part).
I do not believe the summary judgment record generates a genuine issue of material fact on plaintiffs’ claims against defendant Muller estate. Accordingly, I dissent from division II of the majority opinion and the result as it bears on defendant Muller. I agree with the conclusions by the majority as to plaintiffs’ claims against defendant Anderson estate.
I. The record. In considering the validity of defendant Muller’s motion for summary judgment we are bound by the record presented in connection with the motion which consisted of pleadings, depositions, affidavits and answers to interrogatories.
Instead, the majority has supplemented the record before us with important inferences, which are without foundation in the record. For example, the majority speculates:
... that Muller may have braked and skidded across the center line into Anderson, or may have struck Anderson while trying to pass Weller on the left.
(Emphasis supplied.) These assertions ignore the fact that the record evidence is that Muller was on his own side of the road at all material times.
II. Applicable principles. This case illustrates the maxim that, “Hard facts make bad law.”
The majority feels compelled to leave an avenue of liability open for plaintiffs against defendant Muller, even though no evidence exists to generate a genuine issue of fact as to negligence on the part of Muller sufficient for plaintiffs to get by defendant Muller’s motion for summary judgment under Iowa R.Civ.P. 237. In the process, the majority overlooks, or sets to one side, several established principles of review and law. They are as follows.
If, upon the basis of such materials before the court as would be competent proof at trial, the court would be compelled to direct a verdict for the movant, then it is proper to render summary judgment. Meyer v. Nottger, 241 N.W.2d 911, 917 (Iowa 1976) (citing Sherwood v. Nissen, 179 N.W.2d 336, 339 (Iowa 1970)).
Iowa Uniform Jury Instruction, No. 2.15, which our trial courts use with regularity states:
The mere fact that a collision occurred and that the parties sustained damages (and injuries) is not, in itself, sufficient to show that either party was negligent. The burden is upon the party making the claim to establish that the other party *692was negligent and this must be done by the greater weight or preponderance of the evidence.
To the same effect, see Armbruster v. Gray, 225 Iowa 1226, 1230, 282 N.W. 342, 344 (1938).
Circumstantial evidence is not sufficient to make a jury question when the conclusion involved is based on “surmise, speculation, or conjecture.” Harsha v. State Savings Bank, 346 N.W.2d 791, 800 (Iowa 1984).
Even when the record is examined in the light most favorable to plaintiffs against whom Muller’s motion was made, Millright v. Romer, 322 N.W.2d 30, 31 (Iowa 1982), the evidence is purely “surmise, speculation or conjecture” as to what Muller did after he was last seen by Weller, the truck driver, on Muller’s own side of the road.
III. The evidence as to Muller. There are no living eyewitnesses to the Muller-Anderson collision, and no physical evidence was found to determine how the accident occurred or even the point of impact on the road. When Weller, the semi driver, last observed Muller’s pickup in his rearview mirror, Muller was in the westbound lane, on the proper side of the road. Weller next saw the ball of fire from the explosion which occurred after the two vehicles collided. When Weller and Iowa Highway Trooper Hauser came upon the scene of the accident, although the Muller pickup at rest was facing the opposite direction from which it had been traveling, neither it nor any part of the other two vehicles was then over the centerline of the road.
In the deposition of Weller, counsel for plaintiff referred to an unsworn, unsigned tape-recorded statement that Weller had given to an investigator over the telephone in which Weller said that when he came upon the accident scene a portion of the Muller vehicle at rest was slightly over the centerline of the road. In the sworn deposition, Weller clearly stated that he was in error in the earlier statement and that the Muller vehicle was at rest on its own side of the road when Weller came upon the accident scene. In addition, Weller drew a deposition diagram showing the positions of all the vehicles shortly after the accident. This diagram, consistent with Weller’s sworn testimony, also showed the Muller vehicle on its own side of the road. The taped unsworn statement was not part of the record for summary judgment purposes, and Weller firmly testified he was incorrect in that earlier statement. His deposition testimony was the substantial evidence we must consider in connection with defendant’s motion. I would conclude the taped mistaken statement “is entitled to little weight on the scale of substantial evidence,” Chariton Feed and Grain, Inc. v. Harder, 369 N.W.2d 777, 787 (Iowa 1985), and insufficient to generate a genuine issue of fact as to Muller being on the wrong side of the road shortly before the accident.
There is no evidence in this record to support any of the other specific allegations of negligence against Muller. The only testimony regarding the speed of the Muller vehicle is that of Weller, who testified that Muller lessened the distance between his pickup and the semi from one-quarter to one-eighth of a mile from the first time Weller saw Muller until just prior to the accident, one and one-half to three miles away.
The inferences by the majority that Muller may have done certain things, after he was last seen one-eighth of a mile behind Weller and on his own side of the road, come under the comment by Dean Prosser who stated:
It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all doubt negligence in the air, it is still necessary to bring it home to the defendant.
W. Prosser and W. Keeton, Prosser and Keeton on the Law of Torts 218 (4th ed. 1971).
Based on the summary judgment record there is insufficient evidence to generate a genuine issue of material fact of causative negligence on the part of Muller. If this *693summary judgment record were the trial record, the court would be compelled to direct a verdict against plaintiffs as to Muller.
IV. Circumstantial evidence cases. The majority cites several cases to the effect that circumstantial evidence was sufficient to generate a jury question on whether one driver or the other negligently caused a head-on highway collision and thus violated Iowa Code section 321.298, which requires vehicles meeting each other on a roadway to yield one-half of the roadway to each other by turning to the right.
In each of those cases, Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 642-43 (Iowa 1969); Bokhoven v. Hull, 247 Iowa 604, 607-08, 75 N.W.2d 225, 227 (1956); Hackman v. Beckwith, 245 Iowa 791, 795-97, 64 N.W.2d 275, 278-80 (1954); and Smith v. Darling & Co., 244 Iowa 133, 143, 56 N.W.2d 47, 53 (1952), there was substantial circumstantial evidence from skid marks, pavement gouges, debris, dirt or location of vehicles at rest after the accident from which substantial inferences and conclusions could be made as to how the accident happened and the identity of the party who was on the wrong side of the road.
However, none of those items of evidence are contained in the present record to show whose negligence, if any, caused the Muller-Anderson accident and the consequent blocking of the highway as plaintiffs came upon the scene. There are no living eyewitnesses to the Muller-Anderson accident, no marks on the highway, no concentrations of debris or dirt from the vehicles, and all vehicles were at rest on their own sides of the road after the Schermer-Anderson accident.
As compelling as a desire for a recovery for plaintiffs may be, the record does not generate a jury question as to causative negligence by defendant Muller.
In its quest to keep Muller in the case, the majority, unfortunately and most importantly, has set to one side the legal principle embodied in our basic jury instruction in a negligence case that the mere fact a collision or accident occurred is not sufficient to show that either party was negligent. See Iowa Uniform Jury Instructions, No. 2.15.
V. Conclusion. Therefore, I would vacate the court of appeals decision. I would affirm the judgment of the district court in all respects as to defendant Muller, thereby letting Muller out of the case. As to defendant Anderson, I would affirm the district court’s ruling as to the inapplicability of the doctrine of res ipsa loquitur under this record and would reverse that court’s ruling as to causative negligence by Anderson, leaving Anderson in the case. I then would remand the case for further appropriate proceedings against defendant Anderson.
UHLENHOPP and McCORMICK, JJ., join this dissent.