260 N.W. 853 (Iowa 1935), 42268, Schwind v. Gibson

Docket Nº:42268.
Citation:260 N.W. 853, 220 Iowa 377
Opinion Judge:KINTZINGER, Justice.
Party Name:SCHWIND v. GIBSON et al.
Attorney:James J. Lamb, F. J. MacLaughlin, and Lane & Waterman, all of Davenport, for appellant. A. H. Sargent, D. C. Hutchison, and Deacon, Sargent, Spangler & Hutchison, all of Cedar Rapids, for appellees.
Judge Panel:ANDERSON, C. J., and all Justices concur.
Case Date:May 14, 1935
Court:Supreme Court of Iowa
 
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Page 853

260 N.W. 853 (Iowa 1935)

220 Iowa 377

SCHWIND

v.

GIBSON et al.

No. 42268.

Supreme Court of Iowa.

May 14, 1935

         Appeal from District Court, Linn County; Herbert C. Ring, Judge.

         This is an action to recover damages for a death resulting from a collision between the car in which decedent was riding as a guest, and the defendant's truck on highway No. 13, between Central City and Cedar Rapids, Iowa, after dark on December 20, 1931. From a directed verdict in favor of defendants, plaintiff appeals.

         Reversed.

Page 854

          James J. Lamb, F. J. MacLaughlin, and Lane & Waterman, all of Davenport, for appellant.

          A. H. Sargent, D. C. Hutchison, and Deacon, Sargent, Spangler & Hutchison, all of Cedar Rapids, for appellees.

          KINTZINGER, Justice.

         The question before us is the correctness of the lower's court ruling in directing a verdict in favor of defendants. In sustaining this motion, the lower court held as a matter of law: (1) That plaintiff failed to establish any negligence on the part of the driver of defendant's truck; (2) that the proximate cause of the injury and death was not any negligence of the driver of defendant's truck; and (3) that plaintiff's decedent was guilty of contributory negligence as a matter of law.

          It is the settled rule of law in this state that in the consideration of a motion for a directed verdict the appellant is entitled to have the evidence considered in its most favorable light to him. Robertson v. Carlgren, 211 Iowa, 963, 234 N.W. 824; Hamilton v. Wilson (Iowa) 240 N.W. 685; Holderman v. Witmer, 166 Iowa, 406, loc. cit. 409, 147 N.W. 926.

         The principal allegation of negligence consists in allowing the truck in question to remain standing or parked across the entire right side of the highway without lights as required by statute. It is contended by appellant: (1) That there was sufficient evidence of defendant's negligence to take this question to the jury; (2) that the negligence of the defendant was the proximate cause of the collision resulting in decedent's death; and (3) that there was sufficient evidence on the question of plaintiff's contributory negligence to take that question to the jury.

         A review of the evidence is necessary for a determination of the question raised. The evidence shows without dispute that the car in which decedent was riding as a guest collided with a truck belonging to the defendant, standing upon paved highway No. 13 at the intersection of a dirt road. On December 20, 1931, one Mr. Fleming and his wife invited Mr. and Mrs. Koppes to accompany them on a trip to Mrs. Fleming's relatives near Central City, Iowa. Mr. Fleming had the use of, and was in sole charge and control of, a two-door sedan automobile, owned by his employer, and was the only person operating it on the entire trip and at the time in question. He and Mr. Koppes occupied the front seat, and Mrs. Fleming and Mrs. Koppes with her two year old daughter occupied the rear seat of the car at the time in question. They took another route in going to Central City that day, but returned on highway No. 13. When they reached a point about a mile south of the Linn County Poor Farm on highway No. 13, where it is intersected by an east and west dirt road, the car in which plaintiff was riding skidded into and collided with defendant's truck standing on No. 13. Highway No. 13 runs north and south, and is perfectly straight with only a slight grade toward the intersection from a point about 1,000 feet northerly therefrom. The dirt road crossing it runs east and west. The collision happened at about 5:35 p. m. It was then after dark, and more than a half hour after sunset.

          There is a dispute as to the position of the truck just before and at the time of the collision. Appellant claims it was standing entirely across the right half of the road in a

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southwesterly and northeasterly direction with the rear corner extending over the center line of the pavement. Defendants claim that both right wheels were on the shoulder of the road about two feet off the west edge of the paving. There was a sharp conflict in the evidence on this question, and its determination was properly a question of fact for the jury. Viewing plaintiff's testimony in its most favorable light to him, the jury would be warranted in finding that the entire truck was standing across the west side of the paving in a diagonal direction with the rear left corner extending over the center line of the paving.

         I. The first question for determination is whether or not there was any evidence tending to show any negligence on the part of defendant. The negligence alleged is: (1) In permitting the truck to remain standing and parked on the traveled portion of a paved highway without displaying any rear red light as required by statute, later than one-half hour after sunset and earlier than one-half hour before sunrise; (2) in permitting the truck to remain without lights on a hard-surfaced highway outside the limits of a city or town, with no artificial lights on the highway to indicate the presence of the truck thereon; and (3) in failing to give warning of the presence of said unlighted truck by placing a proper light near it.

         Section 5044 of the Code of 1931 provides that: " All motor vehicles in use on the public highways * * * shall, during the period of from one-half hour after sunset to one-half hour before sunrise, display two or more white * * * lights, * * * on the forward part of said vehicle. * * *"

         Section 5045 provides: " Such motor vehicle when in use or parked upon or immediately adjacent to the traveled portion of the highway shall also display on the rear a lamp so constructed and placed as to show a red light from the rear. * * *"

         Section 5045 provides: " No person shall, * * * from one-half hour after sunset to one-half hour before sunrise, permit a motor vehicle, * * * to stand upon the paved portion of any hard surfaced highway outside of the corporate limits of any incorporated city or town with the rear light extinguished unless said highway is artificially lighted, at the place where the vehicle is located, to such an extent as to clearly indicate the presence of said vehicle. A violation of this section shall constitute a misdemeanor and be punishable by a fine. * * *"

          The principal ground of negligence alleged is defendant's failure to have the proper lights upon his truck while it remained standing or parked upon the highway. The truck in question was standing upon primary highway No. 13 between one-half hour after sunset and one-half hour before sunrise, outside the corporate limits of any incorporated city or town, at a place where the road was not sufficiently lighted to disclose the presence of the truck. A failure to comply with the foregoing statutes is negligence per se, and a violation thereof would render a person liable for injuries resulting therefrom, unless he has shown a legal excuse for a failure to comply with such statutory requirements. Such a legal excuse has been held to be: " 1. Anything that would make it impossible to comply with the statute or ordinance. 2. Anything over which the driver has no control. * * * 3. Where the driver * * * is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute. 4. Where a statute...

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