Steele v. Brada

• Decision Date: 16 December 1931
• Docket Number: 40935
• Citation: 239 N.W. 538,213 Iowa 708
• Parties: RICHARD STEELE, Appellee, v. GEORGE BRADA et al., Appellants
• Court: Iowa Supreme Court

239 N.W. 538

213 Iowa 708

RICHARD STEELE, Appellee, v. GEORGE BRADA et al., Appellants

No. 40935

Supreme Court of Iowa, Des Moines

December 16, 1931

Appeal from Floyd District Court.--J. J. CLARK, Judge.

This was an action brought by the plaintiff, Richard Steele against the defendants, George Brada and Marvin F. Schlick to recover damages for personal injuries received by him, and alleged to have been caused by the negligence of the defendants. There was a trial to a jury, which returned a verdict for the plaintiff. From the judgment entered thereon the defendants appeal.

Reversed.

Larson & Carr, for appellee.

R. W. Zastrow, Guy S. Calkins, and C. C. Putnam, for appellants.

KINDIG, J. FAVILLE, C. J., and EVANS, MORLING, and GRIMM, JJ., concur.

OPINION

KINDIG, J.

At about four o'clock in the afternoon of October 28, 1929, the plaintiff-appellee Richard Steele, while riding on a bicycle over the Cedar River bridge in Charles City, was struck by a towed truck, belonging to the defendant-appellant Marvin F. Schlick, being towed over the bridge by an automobile owned and driven by George Brada, defendant and appellant. This towing car was pulling the towed truck over the bridge in the same direction that the bicycle was traveling. The bridge extends across the river in a northeasterly and southwesterly direction. It is 258 feet long and 19 feet one inch wide.

Appellee, who was working for the Sherman Nursery, claims to have ridden his bicycle onto the bridge from the south and had proceeded on the structure about thirty feet when struck by the towed truck. Appellant George Brada operated a garage, and had been called out into the country to tow in the said truck owned by the appellant Marvin F. Schlick. The truck was unable to run on its own power. A wide band was used to attach the defective truck to the towing car. Dale Reetz, employee of the appellant Marvin F. Schlick, was at the wheel of the towed truck to manage it while being towed. When appellant Brada's towing automobile approached appellee on his bicycle, the former sounded the horn as a warning to the latter. Upon hearing the automobile horn of the towing car, appellee turned to his left and permitted appellant Brada's towing car to pass to the right, but he was struck by the towed truck.

There is a dispute at this point concerning what, if any, warning appellee had of the approaching towed truck. On the one hand appellants claim that a warning was given the appellee by Dale Reetz, who, as before explained, managed the towed truck; while on the other hand appellee contends that he heard no such warning. Appellee says the towed truck crashed into him without warning. Furthermore, it is claimed by appellee that the appellant Brada was moving the towing car at an excessive rate of speed. Again, it is said by appellee that the appellant Schlick was negligent: First, because no warning of the approaching truck was given; second, because the attendant Dale Reetz failed to properly put on the brakes; and third, because the towed truck was not properly controlled by the said Reetz.

Both appellants pleaded that the appellee was guilty of contributory negligence. That is true, the appellants declare: First, because the appellee turned to the left, rather than the right, to permit the car and truck to pass; and second, because when turning to the left he did not remain in a place of safety until both car and truck had passed, but, after the towing car had gone by, negligently swerved to the right into the on-coming truck.

Throughout its instructions, with the exception of one paragraph, the district court told the jury that the appellee could not recover if his negligence contributed to the injury. In paragraph six, however, the trial court interposed another theory, and because of this novation the appellants complain. This new theory in effect amounted to an instruction on the last clear chance doctrine. Complaint was made of this by the appellants because a cause of action on that basis was neither pleaded nor proven. To understand the instruction fully, it will be necessary to consider the various portions thereof.

First the district court told the jury that the appellants as well as the appellee had a right upon the highway on the occasion in question. Then that court told the fact-finding body that if the appellants overtook the appellee "when so traveling (in the manner and way before explained), and desired to travel faster than he (appellee) was traveling, they (appellants) had a right to signal him (appellee) by sounding the horn to warn him of their (appellants') intention to pass him (appellee) on the left side, in which case it would have been his (appellee's) duty remain on the right side until they passed him, unless as he (appellee) claims, they (appellants) were so close upon him (appellee) and that they (appellants) were going at such a speed as to render it dangerous to him (appellee) to remain where he was, in which case he (appellee) would have a right to do whatever ordinary care would require under the circumstances in the way of increasing his (appellee's) own speed or turning to the left side of the street in order to escape danger; and if you find that he (appellee) did this, and passed to the left and remained and traveled on the left of them (appellants) as far as reasonable care would require, he (appellee) would not be guilty of contributory negligence in that respect."

Apparently the district court was asking the jury to apply that rule of law which will not permit a defendant to complain after he has put the plaintiff in a place of danger because the latter does not act discreetly in avoiding the catastrophe. See Lein v. John Morrell & Co., 207 Iowa 1271, 224 N.W. 576; Elmore v. Des Moines City Railway Co., 207 Iowa 862, 224 N.W. 28; Kern v. Des Moines City Railway Co., 141 Iowa 620, 118 N.W. 451. During the discussion in the Kern case it was said:

"If it (the Railway Company) created the peril, it can not be heard to say, 'Well, you do not act discreetly in avoiding it.'"

The effect of the district court's instruction up to this point is that the appellee would not necessarily be negligent in turning to the left rather than the right. Nowhere however, up to this place is there indication in the instructions anywhere that the appellee could recover were he guilty of contributory negligence. Following the foregoing statement in Instruction Six, the trial court then proceeds to say that the appellants are not liable unless they were guilty of some ground of negligence charged in the appellee's petition and proven in the...