Johnson v. Baker

• Decision Date: 12 March 1963
• Docket Number: No. 50886,50886
• Citation: 254 Iowa 1077,120 N.W.2d 502
• Parties: Ray A. JOHNSON and Gladys Johnson, Appellants, v. P. D. BAKER and Harlan Wichtendahl, Appellees.
• Court: Iowa Supreme Court

Page 502

120 N.W.2d 502

254 Iowa 1077

Ray A. JOHNSON and Gladys Johnson, Appellants, v. P. D. BAKER and Harlan Wichtendahl, Appellees.

No. 50886.

Supreme Court of Iowa.

March 12, 1963.

Miller, Miller & Miller, Cherokee, for appellants.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, Loughlin & Loughlin, Cherokee, and Evan Hultman, Atty. Gen., Bruce M. Snell, Jr., and David E. Byers, Asst. Attys. Gen., for appellees.

MOORE, Justice.

On June 28, 1961 a tractor and semitrailer loaded with hot bituminous material while attempting to make a left turn at the base of a steep hill overturned, demolishing the highway patrol car assigned to defendant P. H. Baker and damaging plaintiffs' real and personal property located at the southeast corner of Bluff and North Second streets in Cherokee. After being reimbursed for half of their damages, plaintiffs proceeded against defendants Baker and Wichtendahl. Plaintiffs alleged the accident and damage to their property was caused by the negligence of the two defendant highway patrolmen in (a) stopping traffic and conducting a vehicle safety check at a dangerous intersection, (b) causing North Second street to become completely obstructed at the base of a steep hill with limited visibility from the north, (c) creating a traffic hazard dangerous to life and property, and (d) parking their patrol car in violation of four Cherokee city ordinances. On trial, after the court had overruled defendants' motion for directed verdict, a $1500 jury verdict for plaintiffs resulted. Thereafter the trial court sustained defendants' motion for judgment notwithstanding the verdict. Plaintiffs have appealed.

Plaintiffs assign three errors for reversal; the trial court erred in sustaining defendants' motion for judgment notwithstanding verdict (based on defendants' motion for directed verdict) on the grounds: (1) plaintiffs failed to prove negligence by defendants, (2) said negligence was not a proximate cause of plaintiffs' damage, (3) defendant patrolmen were immune from liability.

The court's ruling was based on the theory defendants' motion for directed verdict should have been sustained. Therefore in considering the propriety of the ruling we must give plaintiffs' evidence the most favorable construction it will reasonably bear. Rule 344(f), par. 2, R.C.P., 58 I.C.A. We review the evidence with this rule in mind. Plaintiffs' home is located on the southeast corner of North Second and Bluff streets in Cherokee. North Second, a north and south street 35 1/2 feet wide, is part of U. S. Highway 59 and State Highways 3 and 5. It is intersected at right angles by Bluff street an east and west street 30 1/2 feet wide. The intersection is at the base of a steep hill on North Second which curves to the east starting about 300 feet north of the intersection. Because of a high bank on the east side of the curve the intersection is not visible to southbound traffic until the curve has been negotiated.

By Cherokee city ordinances (pleaded and proven by plaintiffs) standing or parking of vehicles was prohibited where the curbing was painted yellow or no parking signs were posted. Parking in an intersection or on a crosswalk was also prohibited. Where parking was permitted it was required the vehicle be parked parallel with the edge of the roadway in the direction of the lawful traffic movement, with the right-hand wheels within 18 inches of the curb. Prior to the accident the rounding curb at the southeast corner of the intersection was painted yellow as was the south curb of Bluff street for at least ten feet east of the intersection. 'No parking' signs were also posted on the south side of Bluff street just east of the intersection and on the east side of North Second south of Bluff.

On the morning of June 28, 1961 defendants met at the highway patrol office in Cherokee and decided to make a traffic check that morning. Such a check was part of their official duties. The time and place was of their own choosing. They decided to make the check just south of the above intersection and proceeded there. Wichtendahl parked the patrol car assigned to him in a root beer stand parking area near the southwest corner of the intersection. Baker parked his patrol car just around the curve of the yellow painted curb at the southeast corner of the intersection, headed northeast. Its right wheels were three feet from the curb. The left front of the patrol car was 9 feet north of the south curb, and about 21 feet south of the north curb, of Bluff street.

Defendants' purpose was to check licenses and equipment. Both defendants knew from experience such checks often disclose faulty equipment, including defective brakes. Baker testified he also knew of a previous tragedy which had occurred when a truck lost its brakes on this North Second street hill killing several people but gave it no consideration when selecting the site.

After parking their vehicles defendants proceeded to stop traffic and check equipment just south of the intersection. About 20 minutes thereafter while Baker was checking a southbound truck and Wichtendahl had northbound cars stopped on the east side of North Second a tractor-semitrailer loaded with hot bituminous material started down the hill from the north. Its driver, Bergner, was driving within the legal speed limit and had 'shifted down' when he approached the hill. The vehicle was equipped with air brakes on all wheels of the tractor-trailer. They had been in good working condition. As soon as the intersection could be seen Bergner observed his path was blocked at the location of the traffic check. He immediately applied his brakes, preparing to make a complete stop but found himself in difficulty due to sand on the street and the movement of the load. He testified the load movement seemed to 'jet' his transport. The skidding of the wheels on the sandy street together with the roar of the truck motor, which Bergner was using also to brake his vehicle, attracted defendants' attention. They immediately left their stations and 'ran for their lives'. Bergner continued his efforts and slowed his vehicle to about 15 miles per hour as he approached the intersection. He decided to make a left turn at the intersection rather than crash into the vehicles blocking his path to the south. In making the turn east on Bluff street the tractor went through the space between the patrol car and the north curb. The trailer wheels struck the patrol car, causing the trailer to roll over on it. The load of hot bituminous material was dumped into the yard and house of plaintiffs causing considerable damage.

I. Plaintiffs contend the evidence was sufficient to create a jury question as to defendants' negligence. We agree. In the often cited case of Kisling v. Thierman, 214 Iowa 911, 915, 243 N.W. 552, 554, it is said:

'[W]here 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.'

Defendants make no claim of emergency or other legal excuse. Although defendants disputed the evidence of other witnesses that the squad car was parked contrary to the ordinances the jury could have so found. Photographs received as exhibits so indicate. Such parking in the absence of legal excuse is negligence. Trailer v. Schelm, 227 Iowa 780, 288 N.W. 865.

Compliance with statutes and ordinances prescribe only the minimum of prudent conduct. Motorists are also required to exercise the care of the ordinarily prudent person under the circumstances. Langner v. Caviness, 238 Iowa 774, 779, 28 N.W.2d 421, 444, 172 A.L.R. 1135; Knaus Truck Lines v. Commercial Freight Lines, 238 Iowa 1356, 1365, 29 N.W.2d 204, 209. The Knaus case holds obstructing traffic may under proper fact showing create a jury question of negligence. We believe this is such a case. Defendants do not seriously argue otherwise. They cite no authority to support the trial court's ruling that the evidence was insufficient to generate a jury question on negligence. They vigorously argue the issues of proximate cause and immunity.

II. Defendants contend the court's ruling was correct for the reason the evidence did not show their negligence, if any, was the proximate cause of the collision of the transport with the patrol car and damages to plaintiffs' property. Authorities agree there may be more than one proximate cause of any accident and damage. 65 C.J.S. Negligence § 110; 60 C.J.S. Motor Vehicles § 254; 5A Am.Jur., Automobiles and Highway Traffic, section 238; Lockwood v. Wiltgen, 251 Iowa 484, 490, 101 N.W.2d 724, 728, and citations. Law v. Hemmingsen, 249 Iowa 820, 826, 89 N.W.2d 386, 391, states: 'That each person whose negligence concurs or combines to cause injury to another is liable therefor is so well settled citation of authority is hardly necessary.' The decision then cites various authorities which need not be repeated here.

In Schwind v. Gibson, 220 Iowa 377, 385, 260 N.W. 853, 857, plaintiff was riding in a car which the driver was unable to stop on a slippery road before striking the parked truck of the defendant. In considering the question of proximate cause, it is said:

'It will not do to say as a matter of law that his negligence in permitting his truck to stand upon the pavement without lights was not a proximate cause of the collision in question. That question, under the facts in this case, is necessarily for the jury. (Citations) * * *

'It is the settled rule of law in this state that where the evidence shows that an injury results...