Dailey-Luce Auto Company second appeal

Supreme Court of Iowa.·225 Iowa 89 (Iowa 1938)SWAN V. DAILEY-LUCE AUTO CO C.E. SWAN, APPELLANT, V. DAILEY-LUCE AUTO COMPANY ET AL., APPELLEES. NO. 44242. SUPREME COURT OF IOWA. FEBRUARY 8, 1938. SUPPLEMENTAL OPINION ON PETITION FOR REHEARING AND REHEARING DENIED, SEPTEMBER 30, 1938.

MOTOR VEHICLES: Proper lookout for pedestrian — jury question. 1, 3 After motorist had seen pedestrian 180 feet away standing on the curb and when pedestrian had almost reached the opposite side of the street before being struck by the motor vehicle, which meanwhile had traveled the 180 feet, during which time pedestrian was plainly visible, and when motorist claims he did not again see pedestrian until just before striking him, the evidence raises a jury question as to whether motorist kept proper lookout, and directing a verdict is improper.

MOTOR VEHICLES: Pedestrians — assured clear distance — legal excuse — jury question.

MOTOR VEHICLES: Pedestrian crossing street — duties — contributory negligence — jury question. both

*9090 APPEAL FROM WAYNE DISTRICT COURT. — HOMER A. FULLER, JUDGE. ACTION TO RECOVER DAMAGES AS A RESULT OF BEING STRUCK BY DEFENDANTS' AUTOMOBILE WHILE PLAINTIFF WAS CROSSING THE PRINCIPAL STREET IN THE TOWN OF LINEVILLE, IOWA, ON THE NIGHT OF MARCH 29, 1933. THE COURT DIRECTED A VERDICT FOR DEFENDANTS. FROM A JUDGMENT ENTERED THEREON, PLAINTIFF APPEALS. — REVERSED. Garrett Elson, for appellant.

Murrow Miles and W.H. Tedrow, for appellees.

KINTZINGER, J.

This is the second appeal of this case; the first is reported in Swan v. Dailey-Luce Auto Company, 221 Iowa 842, 265 N.W. 143. As the facts in this case are substantially identical with those involved in the case on the former appeal, we will not enter into an extended review thereof here, but for a further review thereof will refer to the facts set out therein.

At the close of plaintiff's evidence, defendants filed a motion for a directed verdict upon the following grounds: (1) That plaintiff has failed to establish any negligence on the part of defendants' driver; and (2) that he has failed to show himself free from contributory negligence.

Plaintiff, a man over seventy-seven years of age, had just left a movie theatre at about 10 o'clock p.m., on March 29, 1933, and walked to the street corner for the purpose of crossing the street. Before crossing, he stopped on the edge of the street under the glare of the flood lights of a filling station and looked up and down the street; he saw no car approaching from either direction and then started to walk across a 50-foot street. When he reached the center of the crossing, he continued the balance *9191 of the way on a "dogtrot" without looking up. He came within one step of reaching the opposite side of the street when he was struck by defendants' automobile approaching the crossing from the north at a speed of about 20 or 25 miles an hour. At the time of the collision defendants' car was traveling on the extreme right or west side of Brown street, also called highway No. 65. This highway comes to a fork in the road at about the place where plaintiff stood when he looked north.

The record shows without dispute that the defendants' driver, as he approached the crossing from the north, saw plaintiff standing on the east edge of the road 180 feet away by the lights at the filling station. The record also shows that defendants' driver had a clear view of the entire crossing while plaintiff was crossing the street.

I. Appellant contends that the court erred in holding there was not sufficient evidence to submit the question of defendants' negligence to the jury.

Among the acts of negligence alleged are the following: (1) That defendants' driver failed to have his car under control and failed to reduce the speed thereof so that the same could be stopped within the assured clear distance ahead; and (2) that he failed to keep a proper lookout for pedestrians who might be traveling on said highway.

Defendants' driver admits that he saw plaintiff standing on the east side of the crossing when he was 180 feet away. He then says he did not see him again until he suddenly "popped up" in front of him on the crossing. Another witness who was standing on the sidewalk was as far, if not farther away, from plaintiff than defendants' car, and he saw the plaintiff traveling across the street from the time he left the east side until he was struck on the west side of the street.

[1] Defendants' driver does not explain his failure to see plaintiff walking across the street, although he contends that plaintiff must have seen him. There were no obstructions whatever between the crossing and defendants' car from the time he first saw the plaintiff 180 feet away and the time he struck him. Therefore, if plaintiff could have seen defendants' car, it is obvious that the defendants' driver could also have seen the plaintiff. There was a statutory duty on the part of defendants' driver to look for pedestrians on the street. If he did not see *9292 plaintiff as he was crossing the street, he could not have looked, and this specific act of negligence was surely one for the jury.

The statute, Code 1935, section 5029, also required defendants' driver to drive his car at a speed not greater than would permit him to bring it to a stop within the assured clear distance ahead. If the driver of defendants' car first saw the plaintiff 180 feet away when the plaintiff started to cross the street, it was his duty to reduce the speed of his car to such a rate that it could be stopped within the assured clear distance ahead.

He attempts to avoid his duty under this statute by making the bald statement that he did not see plaintiff while he was crossing the street until he "popped up" in front of him just as the collision occurred. In order to do this, the jury might have found that it was impossible for defendants' driver not to have seen him again, unless this old man leaped clear across the street so quickly that defendant was unable to see him while so doing.

The undisputed evidence shows that the entire crossing could be seen for a distance of 180 feet by the driver of an automobile traveling upon the westerly side of the center line of highway No. 65. When defendants' driver was 180 feet north of the crossing, he saw plaintiff standing under the lights of a filling station at a point about 50 feet from the west side of the street. The evidence tends to show that at about the time defendants' driver saw plaintiff on the crossing 180 feet away the plaintiff started to walk westerly across the street, and that, when he reached a point about one step from the west side of the street, he was struck by defendants' car. There is nothing in the record showing any obstructions in the roadway interfering with defendants' view of plaintiff while the latter was crossing the street.

[2] Without discussing the matter in further detail, it is our conclusion that it was for the jury to say whether or not defendants' driver has shown a legal excuse for not stopping his car within the assured clear distance as required by statute.

That this was a jury question was determined upon the former appeal of this case, wherein we said:

"Under the assured clear distance statute involved in this action, it was the court's duty, under the circumstances disclosed by the evidence in this case, to have instructed the jury *9393 that, if the defendant failed to drive his car at such a speed as to enable him to bring it to a stop within the assured clear distance ahead, then the defendant was guilty of negligence as a matter of law, unless he showed a legal excuse for not complying therewith, in accordance with the meaning of `legal excuse' as hereinabove referred to."

The court erred in failing to submit this question to the jury.

[3] (2) Under the record in this case the question of the negligence of defendants' driver in failing to keep a proper lookout for plaintiff as he was crossing the street was also for the jury.

[4] II. Appellant also contends that the court erred in failing to submit to the jury the question of plaintiff's freedom from contributory negligence.

The undisputed testimony shows that the plaintiff, before starting across the street, looked both up and down the street and saw no automobile approaching from the north. He then stepped off the sidewalk, walked to the center of the crossing, and then continued on a "dogtrot" across the rest of the street. Plaintiff positively testifies that when he looked north he did not see the approaching car, but defendants contend that under the physical facts he must have seen it. Plaintiff at the time he looked north was standing in the glare of the lights at the filling station. He testified that:

"If there had been a car within the lighted area around this station I think I could have seen it. * * * When I was looking up north it was dark up there except for those street lights. * * * I couldn't tell just how far I could have seen that night. It was a cloudy night. It was light where I was standing when I stopped to look. Away from those lights it was dark. There wasn't any car that I saw in the area lighted by the lights from the filling station."

Upon the ruling on a motion for a directed verdict, the evidence should be considered in the light most favorable to appellant. Lorimer v. Hutchinson Ice Cream Co., 216 Iowa 384,249 N.W. 220; Albright v. Chicago, R.I. P. Ry. Co., 200 Iowa 678,205 N.W. 462; Middleton v. Omaha C.B. St. R. Co., 209 Iowa 1278,227 N.W. 915; Robertson v. Carlgren, 211 Iowa 963, *9494234 N.W. 824; Holderman v. Witmer, 166 Iowa 406, 147 N.W. 926.

Plaintiff was standing in a very brightly lighted area looking out into the darkness on a cloudy night; he did not see defendants' car approaching from the north. Under such circumstances it was peculiarly a question for the jury to say whether or not he, in the exercise of ordinary care, could have seen the defendants' car approaching from the north. It may also be said that although he could have seen a car approaching from the north at a distance of 180 feet away, it can hardly be said as a matter of law that he, as a reasonably prudent person, had no right to believe he could get across the street in safety with a car that far away. It cannot be said that a pedestrian is, as a matter of law, guilty of contributory negligence simply because he saw or could have seen a car approaching 180 feet away.

The plaintiff covered half the distance across the street without any trouble, and then started on a "dogtrot" over the rest of it. The evidence also shows that he almost made the entire crossing and reached to within one step of the opposite side of the street. Under such circumstances the jury might have found that he had a right to assume that he could get across the street in safety.

A person crossing a street is not required to anticipate negligence on the part of another, but is justified in assuming that the other will not violate the law. 45 C.J. 954; Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17; Hanson v. Manning, 213 Iowa 625,239 N.W. 793; Shields v. Holtorf, 199 Iowa 37, 201 N.W. 63; Pixler v. Clemens, 195 Iowa 529, 191 N.W. 375; Hartman v. Red Ball Transportation Co., 211 Iowa 64, 233 N.W. 23.

Plaintiff was not required to keep a constant lookout for approaching cars from both directions. This is self-evident because he cannot look both ways at the same time. A pedestrian is only required to exercise ordinary care and whether he did so is ordinarily a question for the jury. Wine v. Jones, 183 Iowa 1166,162 N.W. 196, 168 N.W. 318; Spiker v. City of Ottumwa,193 Iowa 844, 186 N.W. 465; Smith v. Spirek, 196 Iowa 1328,195 N.W. 736; Read v. Reppert, 194 Iowa 620, 190 N.W. 32; 42 C.J. 1152. In an almost identical case filed at this sitting of the court we held that the question of contributory negligence *9595 was for the jury. McCormick v. Kennedy, 224 Iowa 983,277 N.W. 576.

In Read v. Reppert, 194 Iowa 620, loc. cit. 627, 190 N.W. 32,35, we said: "* * * plaintiff said that she did not see the Ford coming. According to the testimony of Brooks and Boldrick, she should have seen the lights of the Ford car on alighting from the Hudson car and looking to the west. But we think it was for the jury to determine whether failure by her to look again before she started south across the street was such want of care as to bar recovery, together with other facts and circumstances shown in evidence. The rule of ordinary care did not impose upon plaintiff the burden of being constantly on the lookout, to see if her path was free from danger. In Wine v. Jones, 183 Iowa 1166, 162 N.W. 196, 168 N.W. 318, we said: `A pedestrian is not bound to constantly keep a lookout for approaching vehicles.'"

If the evidence tends to show that a pedestrian may reasonably expect to get across the street in safety, he is not, as a matter of law, required to wait for all approaching vehicles from both directions before attempting to cross.

The evidence tends to show that defendants' car, as it approached the crossing, was not in the center of the space between the middle of the road and the west side, and that if it had been, plaintiff would not have been struck, because he was so close to the west side of the street when struck that, if the car had been traveling near the center of the street, it would have passed by without striking him. Under the facts, the jury might have found that, if defendants' car had been traveling on the center portion of the road, plaintiff would have been in a place of safety.

Many of the considerations applicable to this class of cases are set out in a quotation from O'Dowd v. Newnham,13 Ga. App. 220, 80 S.E. 36, in McCormick v. Kennedy, supra, and will bear repeating here: "The pedestrian, like the driver of an automobile, in the exercise of ordinary care for his own safety and for the safety of others, is required to anticipate the presence of persons and vehicles upon the highway. But it cannot be said that the duty *9696 which is upon the pedestrian is as urgent as that devolving upon the driver of an automobile, for the foot passenger's action or inaction in the premises is far less important to the other users of the highway. The impact of the body of a pedestrian absorbed in his own meditations, upon a passer-by, might be measurably uncomfortable, but it would seldom be hazardous to either life or limb; whereas the impact of an automobile in motion while the driver is asleep might cause as certain death as if the injured person had been wilfully pursued and wantonly crushed. The pedestrian and the automobile have equal rights upon the highway, but their capacity for inflicting injury is vastly disproportioned. It follows, also, from this, that the driver of an automobile cannot be said to be using the highway within his rights, or to be in the exercise of due care, if he takes advantage of the force, weight, and power of his machine as a means of compelling pedestrians to yield to his machine superior rights upon the public highway, designed for the use of all members of the public upon equal terms. Instances are almost a matter of daily occurrence where apparently the drivers of automobiles operate their machines as if they have been granted a right of way over the public highways, and as if it is nothing more than the duty of the pedestrian to yield precedence to the automobile and to stop and wait until the automobile has passed before attempting to proceed in crossing a street or otherwise using the highway. If there is anything in the argument of priority, man was created before the automobile, and, to paraphrase a quotation from Holy Writ, man was not created for the automobile, but the automobile was created for man. Generally, the natural instinct of self-preservation will inspire in the pedestrian a due degree of caution for his own safety, when he is aware of the approach of an automobile, and this the law will require him to exercise. * * * While, therefore, the law requires that a pedestrian and the driver of an automobile shall each anticipate the presence of the other upon the public highways, and that neither shall do any act likely to jeopardize the safety of the other, still, on account of the great disparity in their respective capacities to inflict injury, the exercise of ordinary diligence on the part of the pedestrian to look out for automobiles does not necessarily require as continuous caution as is requisite to enable an automobilist to fulfil the definition `ordinary diligence' as applied to *9797 one having in his charge a dangerous and death-dealing instrumentality."

We realize this presents a troublesome question, but the question of contributory negligence is ordinarily one for the jury. Altfilisch v. Wessel, 208 Iowa 361, 225 N.W. 862; Robertson v. Carlgren, 211 Iowa 963, 234 N.W. 824; Lorimer v. Hutchinson Ice Cream Co., 216 Iowa 384, 249 N.W. 220. It is our conclusion, without discussing it further, that the questions of negligence and contributory negligence under the evidence in this case were questions of fact for the jury.

Appellees' motion to dismiss the appeal is overruled.

For the reasons hereinabove set out, we are constrained to hold that the court erred in failing to submit these questions to the jury. The judgment of the lower court is therefore hereby reversed. — Reversed.

STIGER, C.J., and ANDERSON, DONEGAN, SAGER, and MILLER, JJ., concur.

SUPPLEMENTAL OPINION. PER CURIAM.

The petition for rehearing is overruled with the following supplement: Appellees contend that we misconstrued the record in assuming that appellant walked half way across the street before he started on a "dogtrot". One of the witnesses said:

"

After I first saw Mr. Swan I noticed him stop there and didn't pay any more attention to him. * * * The second time I looked at him * * * Mr. Swan was in the neighborhood of the middle of the street, in a dogtrot."

Assuming, however, that he started on a dogtrot immediately, we think it immaterial when he commenced to trot because the record shows that before he started across the street he looked both ways and saw nothing. The appellant said:

"When I stood there and I looked up and down the street I did not see an automobile anywhere. * * * It was light there at that time because the filling station had a row of lights all around it and there was a street light there. I was practically under the street light. I was within the large circle of lights made by the filling station. When I looked up north and south *9898 * * * to see if there was anything coming I saw nothing. If there had been a car within the lighted area around this station, I think I would have seen it."

According to some of the evidence appellees' car at that time was about 180 feet away. Appellant was an old man. It was a dark and cloudy night. Therefore, if we assume that he started across the entire street on a dogtrot, it would not affect the result, because the record shows that he came within one step of the opposite side of the street before he was struck.

[5] We cannot say as a matter of law that an old man, on a dark and cloudy night, after looking up and down the street and seeing no automobiles in sight, was guilty of contributory negligence simply because he proceeded across faster than a walk.

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Supreme Court of Iowa.·221 Iowa 842 (Iowa 1936)SWAN V. DAILEY-LUCE AUTO CO C.E. SWAN, APPELLANT, V. DAILEY-LUCE AUTO COMPANY ET AL., APPELLEES. NO. 43173. SUPREME COURT OF IOWA. FEBRUARY 19, 1936. REHEARING DENIED OCTOBER 2, 1936.

NEGLIGENCE: Contributory negligence — adequate definition. An 1 instruction which defines "contributory negligence" as such negligence as "helps" to produce the injury complained of is not erroneous when accompanied by a correct definition of negligence generally.

NEGLIGENCE: Contributory negligence — degree or extent barring recovery. in any way or in any degree. stopping within assured clear distance — erroneous instructions.

AUTOMOBILES: Injuries from operation — prohibited speed negligence per se.

APPEAL FROM WAYNE DISTRICT COURT. — GEORGE A. JOHNSTON, JUDGE. PLAINTIFF, APPELLANT, BRINGS THIS ACTION TO RECOVER DAMAGES AS A RESULT OF BEING STRUCK BY DEFENDANTS' AUTOMOBILE ON THE *843843 NIGHT OF MARCH 29, 1933. THERE WAS A TRIAL TO THE JURY AND A VERDICT AND JUDGMENT FOR DEFENDANTS. PLAINTIFF APPEALS. — REVERSED. Garrett Elson and H.B. Bracewell, for appellant.

Murrow Miles and W.H. Tedrow, for appellees.

KINTZINGER, J.

Plaintiff, while crossing a street intersection as a pedestrian in the town of Lineville, Iowa, at about ten o'clock p.m. on March 29, 1933, was struck by an automobile owned by the Dailey-Luce Auto Company and driven by the defendant Howard Dailey in a southerly direction. The allegations of negligence submitted to the jury were substantially as follows:

First, that defendant failed to have said car under control and failed to reduce the speed thereof so that the same could be stopped within the assured clear distance ahead.

Second, that defendant failed to keep a proper lookout for pedestrians who might be traveling on said highway.

The testimony in substance shows that the defendants' driver was proceeding south on highway No. 65, which runs north and south through the town of Lineville; that there is a fork in this highway from the crossing in question forming two streets running east and west from the point where plaintiff was struck. The testimony shows that the driver of the automobile and the plaintiff, the pedestrian, could see each other for a distance of at least 180 feet. The testimony shows that, before plaintiff started to cross the street, he looked in both directions but says he saw nothing. The driver of the car testified that, when he looked south toward the crossing, he saw plaintiff on the east side of the street, and did not see him again until just before he struck him on the crossing. The evidence shows that plaintiff was almost under the floodlights at a filling station located just south of the crossing and in the space between the forks of the roads, where the two branches of No. 65 separate. The defendants' car was properly equipped with headlights and could be seen for a distance of at least 180 feet. There was therefore evidence from which the jury could find that both parties could have seen each other.

The record shows that, when plaintiff reached that part of the center of the crossing just north of the filling station, he *844844 suddenly started westerly on a "dog trot" across the street, and that, when crossing, he held his head down and never looked up. He was struck at a point about one step from the west side of the street.

There is testimony to show that, before he started to cross the street, he looked north toward the defendants' car, which was approaching at a speed of about 20 or 25 miles an hour. The speed of defendants' car did not slacken until just about the time it struck plaintiff.

This case was submitted to the jury, which returned a verdict in favor of defendants, and plaintiff appeals.

Mr. Dailey, the driver of defendants' car, testified that, when he was about at the first alley north of the crossing in question, which is 180 feet from the crossing, he saw the plaintiff standing on the crossing immediately north of the filling station on the east side of Main street. The distance across the street from the point where defendants' driver saw plaintiff standing in front of the filling station was 50 feet. The driver also testified that, as he was driving south at that time, he had a plain view of the crossing on which the accident happened. There is a slight bend or angle in highway No. 65 where it starts to fork into Main street. This bend in the highway is 90 feet north of the crossing on which plaintiff was crossing the street. The evidence shows without dispute that from this point in the highway the entire crossing over which plaintiff was walking was within plain view of defendants' driver. The evidence shows that, when the plaintiff reached a point on this crossing 50 feet from the west side of it, he looked both north and south. Plaintiff was a man 77 years of age, and, after so looking, he proceeded to cross to the west side of the street. The evidence shows that he was visible to the defendants' driver when defendants' car was 180 feet from the crossing. There is some testimony tending to show that the entire westerly side of the crossing might not have been visible to defendants' driver at that distance on account of an angle beginning the fork of the road on south into Main street. But the evidence is undisputed that the entire crossing was visible to defendants' driver from the angle in the road to the crossing for a distance of at least 90 feet. The undisputed evidence also shows that the entire crossing could be seen for a distance of 180 feet by the driver of an automobile traveling south on the westerly side of the *845845 center line of Highway No. 65. When defendants' driver was 180 feet north of the crossing, he saw plaintiff standing in front of the filling station at a point about 50 feet from the west side of the street. The evidence tends to show that about the time defendants' driver saw him on the crossing 180 feet away the plaintiff started on a "dog trot" westerly across the street, and that, when he reached a point about one step from the west side of the street, he was struck by defendants' car.

Defendants' driver testifies that, after seeing the plaintiff standing in front of the filling station, he never saw him again until he "popped up" in front of his car just before the accident happened. The entire crossing was made plainly visible by electric lights at the filling station, and the driver admitted that he saw plaintiff when his car was 180 feet from the point where plaintiff was standing in front of the filling station. There is nothing in the record in this case tending to show there was anything in the roadway to obstruct defendants' view of plaintiff while the latter was traversing the crossing in question.

[1] I. Plaintiff contends the court erred in giving instructions Nos. 7 and 8 relating to contributory negligence.

Instruction No. 7 says: "You are instructed that contributory negligence, as used in these instructions, means in law such negligence on the part of the plaintiff as helped to produce the injury complained of; "And, if the jury find that the plaintiff was guilty of any act of negligence on his part that helped to bring about or produce the injury complained of, then and in that event the plaintiff would not be entitled to recover in this action. "And, in this connection, you are further instructed that the plaintiff must establish by a preponderance of the evidence his freedom from contributory negligence before he would be entitled to recover from the defendants. To establish his right to recover it would not be sufficient to show that the defendant, Howard Dailey, was guilty of negligence and that such negligence was the proximate cause of the injuries of which plaintiff complains, but plaintiff must establish by a preponderance of the evidence his own freedom from contributory negligence before he would be entitled to recover for any damage occasioned to him by reason of any negligence on the part of the defendant, Howard Dailey." *846846

Instruction No. 8 says: "You are instructed that he (plaintiff) was for his own safety bound to use that degree of care and caution that an ordinarily careful and prudent person would have used under the same or similar circumstances. If he did use such care then he was not guilty of contributory negligence. If he did not use that degree of care and caution for his own safety that an ordinarily careful, cautious and prudent person would have used under the same or similar circumstances, then he was guilty of contributory negligence."

It is claimed that the instructions are erroneous because the court nowhere else gives a correct instruction on the subject of contributory negligence, and that these instructions allowed the jury to speculate and consider acts of the plaintiff that were remote and not a proximate cause of the injury, and that, before a recovery by the plaintiff could be defeated, it must be shown that the damages resulting from the injury "must have been a proximate cause of such injury."

In instruction No. 5 the court defines negligence as follows: "Negligence is defined in a general sense as an omission to perform some duty imposed by law for the protection of the person or property of another. * * * Negligence may * * * be defined as the doing of a thing which an ordinarily cautious and prudent man would not have done under the same or similar circumstances, or the not doing of a thing which an ordinarily prudent and cautious man would have done under the same or similar circumstances."

As hereinabove set out, instruction No. 7 tells the jury that contributory negligence means in law such negligence on the part of the plaintiff as helped to produce the injury complained of.

We think that, when these instructions are construed together, they fairly and correctly instruct the jury upon the question of contributory negligence.

It is the well-settled rule of law in this state that the instructions must be considered as a whole, and if, when so considered, they fairly instruct the jury upon the questions presented, there is no prejudicial error. The instructions as a whole tell the jury in effect that, if the negligence of the plaintiff was *847847 a contributing cause to the injury, it will defeat a recovery, although it may not be the proximate cause thereof.

[2] It is the settled rule of law in this state that "contributory negligence, in order to bar a recovery by the one guilty thereof, need not be the proximate cause." Hogan v. Nesbit, 216 Iowa 75, 246 N.W. 270, 272; Towberman v. Des Moines City Ry. Co., 202 Iowa 1299, 211 N.W. 854; Stilson v. Ellis,208 Iowa 1157, 225 N.W. 346; O'Hara v. Chaplin, 211 Iowa 404,233 N.W. 516; Albert v. Maher Bros. Transfer Co., 215 Iowa 197,243 N.W. 561; Hoegh v. See, 215 Iowa 733, 246 N.W. 787.

In Towberman v. Des Moines Ry. Co., 202 Iowa 1299, loc. cit. 1300, 211 N.W. 854, this court said: "We have many times stated the rule as to contributory negligence. It is well stated in Banning v. C., R.I. P.R. Co.,89 Iowa 74, at page 81, 56 N.W. 277, 279 where we said: `If the injured party contributed in any way, or in any degree directly to the injury, there can be no recovery.' This is a simple and exact statement of the rule that has been followed in this state. * * * We have nowhere held that an instruction which told the jury that the negligence on the part of plaintiff necessary to bar recovery must be the proximate cause of the injury was correct * * *. It would be impossible to so hold under the rule of contributory negligence that we have laid down heretofore and consistently followed, as set out in the excerpts from the Banning case above cited. The thought involved in the use of the term `proximately caused' is that there must be a causal relation between the plaintiff's negligence and the injury, and not that it must be the proximate cause thereof." (Italics ours.)

While these instructions may not be considered model definitions of contributory negligence, we are constrained to hold that, when considered together and in connection with instruction No. 5, they sufficiently advised the jury as to the meaning of contributory negligence, and are therefore not sufficiently prejudicial to constitute error.

[3] II. The chief error relied on for reversal is the giving of instruction No. 11. In this instruction the court told the jury: "That the term `having the automobile under control' is one that has no fixed or certain definition under any and all *848848 circumstances. Much depends upon the situation presented in each individual case as shown by the evidence. "Generally speaking it may be said that a driver has a car `under control' if it is moving at the time at such rate of speed and the driver has the mechanism and power of the car under such control that it can be brought to a stop within a reasonable degree of celerity. A driver of such vehicle is not bound by any hard and fixed rule of conduct and is not required to be able to avoid collision with a pedestrian or other vehicles on the highway under any and all circumstances. "The test is, did he at the time and place and under all the conditions shown as to the nature of the highway, his speed, the traffic, conditions of atmosphere, daylight or darkness and all other conditions shown, have the car under such control that if occasion demanded he could stop the same with a reasonable degree of celerity, but in all cases and under all these circumstances he is only bound to use that degree of care, caution and prudence that an ordinarily careful, cautious and prudent man would have used at the time under the same or similar circumstances in the control and operation of said car. [Italics ours.] If he did not so act and have his car under such control he was guilty of negligence. If he did use such care and caution and have his car under such control he was not guilty of negligence on the ground claimed of failure to have his car under control." Plaintiff contends that this instruction is clearly erroneous and does not properly advise the jury of the duty imposed upon the driver under the assured clear distance statute, Section 5029 of the Code of 1931, which provides that: "Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead." (Italics ours.) It will be noticed that this statute imposes two duties upon the driver of an automobile. The first is that the driver "shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the *849849 traffic, surface," street and other conditions. The second duty imposed is that "no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead." Appellant contends that the duty imposed by this statute was not properly explained to the jury. This statute, in addition to requiring a driver to "drive * * * at a careful and prudent speed," etc., also provides that he shall not "drive * * * at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead."

The court, in submitting the issues in instruction No. 1, said: "The specific acts of negligence which plaintiff charges against the defendants are as follows: "First, that he failed to have said car under control, and failed to reduce the speed of said automobile so that the same could be stopped within the assured clear distance ahead" and "Second, that he failed to keep a proper lookout for pedestrians who might be traveling on the said highway."

In instruction No. 10 the court told the jury that, if they "find the defendant * * * drove his car as he approached the crossing where the collision * * * occurred, at such a rate of speed that the same could not be stopped within the assured clear distance ahead, or failed to reduce the speed * * * as he approached said crossing so that the same could be stopped within the assured clear distance ahead, his failure to have said car under control, within the meaning of the law, and his failure to reduce the speed thereof, would constitute negligence on his part. * * * As to what constitutes having a car under control, within the meaning of the law, you are instructed further as set out in the next instruction," and then follows instruction No. 11, which tells the jury "that a driver has a car `under control' if it is moving at the time at such rate of speed and the driver has the mechanism and power of the car under such control that it can be brought to a stop within a reasonable degree of celerity, and that a driver of such vehicle is not bound by any hard and fast rule of conduct and is not required to be able to avoid a collision with a pedestrian * * * under any and all circumstances. [Italics ours.] The test is, did he at the time and place and under all the conditions shown as to the nature of the highway, *850850 his speed, the traffic, conditions of atmosphere, daylight or darkness and all other conditions shown, have the car under such control that if occasion demanded he could stop the same with a reasonable degree of celerity, but in all cases and under all these circumstances he is only bound to use that degree of care, caution and prudence that an ordinarily careful, cautious and prudent man would have used at the time under the same or similar circumstances in the control and operation of said car. [Italics ours.] If he did not so act and have his car under such control he was guilty of negligence. If he did use such care and caution and have his car under such control he was not guilty of negligence on the ground claimed of failure to have his car under control."

[4] These instructions are clearly misleading as to the requirements of the "assured clear distance ahead" statute hereinabove quoted. The test of liability as given in these instructions is that the negligence of the driver is to be determined by the old rule of negligence applicable before the adoption of the "assured clear distance ahead" statute in 1929. The present statute requiring all drivers to drive at such a speed as to be able to stop their car within the assured clear distance ahead is not governed by the rules applicable prior to 1929. They now impose upon the drivers of cars the positive duty of not driving their car at a speed greater than will permit them to bring it to a stop within the assured clear distance ahead. If, therefore, the defendants' driver saw, or in the exercise of ordinary care could have seen, the plaintiff crossing the street ahead of his car, it was his duty to reduce the speed thereof to such a rate as would enable him to bring it to a stop within the assured clear distance ahead, and the reasonable care rule heretofore in existence has no application. The driver of a car is now required to absolutely stop his car within the assured clear distance ahead unless he is able to show "a legal excuse" for not so doing. This is the rule laid down by this court in the following cases: Lindquist v. Thierman, 216 Iowa 170,248 N.W. 504, 87 A.L.R. 893; Greenland v. City of Des Moines, 206 Iowa 1298,221 N.W. 953; Kisling v. Thierman, 214 Iowa 911,243 N.W. 552; Wosoba v. Kenyon, 215 Iowa 226, 243 N.W. 569; Peckinpaugh v. Engelke, 215 Iowa 1248, 247 N.W. 822; Kimmel v. Mitchell,216 Iowa 366, 249 N.W. 151; Kadlec v. Al. Johnson Const. Co.,217 Iowa 299, 252 N.W. 103; Hart v. Stence, 219 Iowa 55,257 N.W. 434, *851851 97 A.L.R. 535; Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17; Schwind v. Gibson, 220 Iowa 377, 260 N.W. 853.

In the Kisling v. Thierman case, 214 Iowa 911, loc. cit. 915,243 N.W. 552, this court, speaking through Justice Albert, said: "In other words, accurately speaking, where the statute or ordinance has fixed the standard of care, the failure to observe such standard is negligence, and when in the trial of a case, — the other elements being proven, — it is shown that the defendant failed to observe the standard of care thus fixed, a case is made for the jury in the first instance. In such case, the defendant may offer proof excusing his failure to observe such legal standard of care. If, however, he fails to furnish proof of such legal excuse, then it is accurate to say that negligence is established as a matter of law. "With this thought in mind and in accord with this idea, a court is warranted in saying to the jury that if the defendant failed to observe the standard of care thus fixed by statute, he is guilty of negligence, unless he has shown a legal excuse for failure to observe the requirements of the statute or ordinance, and in case he has so shown such legal excuse, he is not guilty of negligence. By the term `legal excuse' is meant:

"1. Anything that would make it impossible to comply with the statute or ordinance.

"2. Anything over which the driver has no control which places his car in a position contrary to the provisions of the statute or ordinance.

"3. Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.

"4. Where a statute specifically provides an excuse or exception. * * *

"The rules here announced are to govern in all such cases, regardless of anything said in prior opinions."

In Townsend v. Armstrong, 220 Iowa 396, loc. cit. 404,260 N.W. 17, 21, this court, speaking through Justice Albert, also said: "The thought that underlies that case [Kisling case] is that, where one violates a statute or ordinance, by so doing he is guilty of negligence, but, if there is a legal excuse for his so doing, he would not be guilty of actionable negligence." *852852

Instruction No. 11, in effect, advised the jury that in all cases and under all circumstances the defendant is only bound to use that degree of care, caution, and prudence that an ordinarily careful, cautious, and prudent man would have used at the time under the same or similar circumstances in the control and operation of said car, and that, if he did use such care and caution and have his car under control, he was not guilty of negligence. Under the assured clear distance statute involved in this action, it was the court's duty, under the circumstances disclosed by the evidence in this case, to have instructed the jury that, if the defendant failed to drive his car at such a speed as to enable him to bring it to a stop within the assured clear distance ahead, then the defendant was guilty of negligence as a matter of law, unless he showed a legal excuse for not complying therewith, in accordance with the meaning of "legal excuse" as hereinabove referred to.

We think the instructions given to the jury on the assured clear distance statute were misleading and prejudicial. The giving of instruction No. 11 was therefore erroneous. Several other errors are assigned as a reason for a reversal of this case. In view of the fact that a reversal is necessary and that any such errors relied on may not arise at a future trial of this case, we deem it unnecessary to consider them here.

For the reasons hereinabove set out, the judgment of the lower court is hereby reversed. — Reversed.

DONEGAN, C.J., and ALBERT, PARSONS, RICHARDS, and HAMILTON, JJ., concur. ContactFeaturesTermsPrivacyAboutJobsPressStudents © 2015 Casetext, Inc. Casetext, Inc. and Casetext are not attorneys or a law firm and do not provide legal advice. ×

todays birthday: brother-in-law David

Vicki facebook post:

Niece Tammy took this pic of our four sons who were home last weekend. David, Jared, Jesse and Dustin. Love my guys!

Happy anniversary to my favorite couple! I can't imagine my big sister being more perfect with anyone else. Love you both (even Cody Wills)

cousin Mona got some sweet seats to watch her team!!!

Grandma Grace painted on fabric...she made quilts and tea towels!

Kevin's sister Dianna commented that their Grandma Blaylock did, as well!

Grandma was always gardening, canning, quilting, sewing,baking, cooking, painting. you didn't catch her just sitting around until her eye sight started going.