I respectfully dissent. I think the trial court's ruling was a clear invasion of the province of the jury.
I do not care to review the evidence in detail. The majority have summarized much of it but in a way that is favorable to defendant. Mr. and Mrs. Pankuk and decedent's father, especially, gave substantial testimony favorable to plaintiff that is not mentioned in the opinion, although it purports to summarize "practically all the evidence bearing upon the position of the truck at the time of the collision." Suffice to say that four witnesses, the three Pankuks and decedent's father, testified to circumstances and physical facts indicating that the collision occurred, contrary to defendant's contention, west of the center line. *Page 491
It was shown that broken glass, damaged parts, and debris were found on the west side of the pavement and none on the east, leading to the Ford car on the west shoulder; the four witnesses testified the broken glass was all on the west side; the bodies of the men, the Ford, and the truck were all on the west side; scratches, skid marks, car and truck tracks were seen on the west half of the pavement, and holes in the west shoulder. Decedent's father testified that defendant admitted decedent's lights were on and that he (defendant) saw the accident. An attorney justice of the peace swore that defendant told him decedent had lights and that defendant's driver "got on the wrong side of the road on that curve and ran into the Ford." (The majority say this witness testified, "he expected to be paid for his trips." He did say, "I expect to be paid for my trips over here," meaning, I assume, his witness fees and mileage.) All the above testimony sharply conflicts with that of defendant's witnesses.
If plaintiff's witnesses were telling the truth, this collision occurred west of the center of the highway, and consequently the case was for the jury. The majority say, "The crux of the case is, Which vehicle was on the wrong side of the road at the time of impact?" Apparently, the verdict was directed because the trial court thought plaintiff's witnesses were not telling the truth. The majority seem to be of the same opinion. But it was for the jury, not for the trial court nor this court, to say who was telling the truth.
I specially dissent from the majority holding that, although it was competent, there is no probative value in the testimony regarding admissions of defendant on the theory that he "could not have seen the accident from the place where he was when the collision occurred." I do not agree that defendant could not have seen the collision. The jury might well have found he was in position to see it. In any event, defendant was following the other two trucks, arrived at the scene of the collision within a few moments, made an investigation, talked with some of the witnesses and doubtless with his nephew-employee. His admissions tended to establish liability and clearly have probative value.
In Read v. Reppert, 194 Iowa 620, 623, 190 N.W. 32, we held that a defendant's admission that his car was probably being *Page 492 driven in a reckless manner was entitled to be considered, even though the defendant did not see the accident, had no knowledge gained by observation as to how the car was driven, and the testimony was denied. The majority in effect overrule Read v. Reppert, which is in line with numerous other authorities. See, also, Melton v. Royal Highlanders, 194 Iowa 352, 359,189 N.W. 787; Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445,138 A.L.R. 842, and annotation 845; 31 C.J.S. 1025, 1026, 1027, section 272b, note 66; 20 Am. Jur. 460, 461, section 544, note 18; IV Wigmore on Evidence, 3d Ed. (1940), 12, section 1053; 1 Jones on Evidence, Civil Cases, 4th Ed. (1938), 556, 557, section 296; 2 Chamberlayne Modern Law of Evidence, 1657, section 1305; 2 Ford on Evidence (1935), 903, section 172; 3 Jones Commentaries on Evidence, 2d Ed. 1972, section 1071; McKelvey on Evidence, 4th Ed. (1932), 133, section 75.
To hold under this record that decedent was guilty of contributory negligence as a matter of law or that there was no substantial evidence of defendant's negligence involves a misconception of the true functions of judge and jury. Hawkins v. Burton, 225 Iowa 707, 281 N.W. 342, and Cerny v. Secor, 211 Iowa 1232,234 N.W. 193, tend to support the conclusion that the case was for the jury.
I would reverse.
BLISS and OLIVER, JJ., join in this dissent.