Aitchison v. Reter

• Decision Date: 26 July 1954
• Docket Number: No. 48418,48418
• Citation: 64 N.W.2d 923,245 Iowa 1005
• Parties: AITCHISON v. RETER.
• Court: Iowa Supreme Court

Page 923

64 N.W.2d 923

245 Iowa 1005

AITCHISON v. RETER.

No. 48418.

Supreme Court of Iowa.

July 26, 1954.

Holleran & Holleran, of Clinton, for appellant.

Waldo M. Wissler, of Davenport, for appellee.

LARSON, Justice.

This accident occurred on a north and south street in the city of Clinton, Iowa, which inclines southward at the place of the collision. It occurred as defendant, proceeding northward, started to make a sharp left turn into his narrow home driveway which was about 100 feet south of the nearest street intersection. Plaintiff was operating his vehicle southward. On the west side of the street an automobile was parked about 6 feet south of defendant's driveway. The street was about 27 feet wide from gutter to gutter at this point. All involved cars were about 6 feet wide. The weather was 'squally' and the pavement wet. Plaintiff testified that he was driving 'approximately 30 miles per hour' when he approached the defendant's car coming from the opposite direction, well over on his right-hand side, near the gutter, and it seemed as if defendant were giving plaintiff plenty of room to pass between defendant's car and the one parked at the west curb; that suddenly defendant turned sharply left toward his driveway and they collided; that he applied his brakes hard and slid his wheels approximately 23 feet when he saw defendant start his left turn. He testified that, although his visibility was good, he saw no turn signal and no evidence of defendant's car slowing down from its speed of about 20 miles per hour. The left front fenders of the two vehicles came together, and defendant's car was turned around, pushed back some 15 feet and came to rest facing southwesterly. Plaintiff's car was pushed into or sideswiped the parked car and came to rest about 15 feet south of the point of impact parallel with the parked car and still facing south.

The damages to plaintiff's automobile was stipulated to be $1,231.26. Plaintiff testified that defendant was from one to four feet across the center line into his half of the street when the accident occurred. He contends the proximate cause of the injury was defendant's (1) failure to yield the right of way, (2) failure to signal a left turn, and (3) failure to change the direct course of his car only when such movement could be made with reasonable safety as required by law.

Defendant denied plaintiff's allegations, and alleged affirmatively that plaintiff (1) failed to keep a proper lookout, (2) failed to keep his car under control as required by law, and (3) that he drove at a 'high and excessive' rate of speed in violation of the statutes of Iowa, and that these acts of negligence were the proximate cause of plaintiff's injury and damage.

At the close of plaintiff's testimony defendant moved for a directed verdict, contending plaintiff's admission that he was exceeding the 25 miles per hour speed limit for that zone as fixed by law was negligence per se and that he was guilty of contributory negligence as a matter of law and could not recover. This motion was overruled as was the same motion offered at the close of all evidence. Exceptions were taken and defendant assigns these rulings as error.

Defendant's testimony was that he gave a turn signal and also tended to show that he was well over on his right side of the pavement when plaintiff's car collided with his vehicle in attempting to pass between the parked car at the west curb and defendant's automobile. The cause was submitted to the jury and they returned a verdict for plaintiff in the sum of $1,231.26. Defendant's motion for judgment notwithstanding the verdict and motion for a new trial were overruled and he appealed.

I. Ordinarily the question of whether or not an injured party has shown himself free from contributory negligence is for the jury. Richards v. Begenstos, 237 Iowa 398, 411, 21 N.W.2d 23; Toney v. Interstate Power Co., 180 Iowa 1362, 163 N.W. 394. However, defendant contends herein that plaintiff was guilty of contributory negligence as a matter of law for the reason that he admitted driving above the statutory speed limit of 25 miles per hour in that zone. He contends correctly that plaintiff must carry the burden herein of proving his freedom from any negligence contributing directly in any way or in any degree to his injury. Yance v. Hoskins, 225 Iowa 1108, 281 N.W. 489, 118 A.L.R. 1186; Meggers v. Kinley, 221 Iowa 383, 265 N.W. 614; Hogan v. Nesbit, 216 Iowa 75, 246 N.W. 270; Towberman v. Des Moines City R. Co., 202 Iowa 1299, 211 N.W. 854; Stilson v. Ellis, 208 Iowa 1157, 225 N.W. 346. In Sanderson v. Chicago, M. & St. P. Ry. Co., 167 Iowa 90, 103, 149 N.W. 188, 192, we said:

'As stated before, the burden of proof rests upon the plaintiff not only to show the negligence of the defendant, upon which liability is predicated, but also that the injured person was free from any negligence on his part contributing to his injury. This burden rests upon the plaintiff at all times, and never shifts to the defendant.'

Defendant contends, correctly we believe, that when one violates the statute which defines a standard of care required, he is guilty of negligence. Wosoba v. Kenyon, 215 Iowa 226, 231, 243 N.W. 569. Anderson v. Holsteen, 238 Iowa 630, 26 N.E.2d 855, and cases cited therein. However, there must appear, in addition to negligence, a causal connection between the fault and the injury or damage, and if there is none, then such negligence certainly would not defeat a recovery by the injured party. We held in Carlson v. Meusberger, 200 Iowa 65, 204 N.W. 432, that such negligence of the injured party must have a causal relationship to the injury before it will bar a recovery. We cannot say here as a matter of law that the excessive speed admitted had a causal connection with the injury, for if the jury would believe plaintiff's testimony that defendant turned suddenly into the path of plaintiff, the collision would have occurred even if the plaintiff had been traveling within the 25 miles per hour speed limit, and so the jury might well determine that there was no causal connection between plaintiff's speed and the injury. See Crutchley v. Bruce, 214 Iowa 731, 240 N.W. 238; Pettijohn v. Weede, 209 Iowa 902, 227 N.W. 824; Mowrey v. Schulz, 230 Iowa 102, 296 N.W. 822. Judge Oliver therein, 230 Iowa at page 107, 296 N.W. at page 824, said:

'Assuming that the automobile was traveling at a negligent speed, such negligence was not a proximate cause of the accident. Had the car been travelling at any other rate of speed the accident would have happened if the boy had ridden into its lane of travel as it reached that place. The proximate cause of the accident was the wrongful act of Russell in riding from the entrance of the alley without stopping * * *.'

Also see Yance v. Hoskins, supra.

In Richards v. Begenstos, 237 Iowa 398, at page 411, 21 N.W.2d 23, at page 30, we reaffirmed the rule announced in Toney v. Interstate Power Co., 180 Iowa 1362, 163 N.W. 394, 400, that "* * * the question of contributory negligence is peculiarly one of fact and not of law, save only in those exceptional cases where the plaintiff's want of reasonable care is so manifest and flagrant as to at once convince all fair and candid minds that he did not exercise the caution for his own safety which marks the conduct of ordinarily prudent men." The evidence herein does not disclose this to be one of those exceptional circumstances, for while negligence may be admitted, its causal connection with the accident is not. Though the driving conditions were not ideal, we cannot say that plaintiff's action in driving at 30 miles per hour under this circumstance was sufficient to convince all fair and candid minds that he did not exercise proper caution for his own safety. The rule, of course, requires that we consider the record in the light most favorable to the plaintiff on the motions for a directed verdict.

We therefore hold that it was proper to submit the question of plaintiff's freedom from contributory negligence to the jury and that there was no error committed by the trial court in overruling such motions to direct.

II. Defendant further assigns error by the trial court in giving to the jury Instructions 18, 19 and 20. In Instruction 18 the trial court told the jury:

'(18) * * * In this case the plaintiff testified that immediately prior to the accident he was driving his car at approximately 30 miles per hour, which speed is in excess of the lawful speed provided by the statute above quoted, and would constitute prima facie negligence. And if you find that such negligence was the direct and proximate cause of the damage of which he complains, the plaintiff cannot recover; but if you find that such admitted speed was not the direct and proximate cause of the accident, then the fact that plaintiff was driving in excess of the lawful rate of speed under the existing conditions, then such negligence would not, in of itself, bar his recovery.' (Italics ours.)

In order to conserve space, only the pertinent parts of Instructions 19 and 20 are set out herein:

'(19) * * * If you find from the evidence in this case that the plaintiff failed to heed and observe such provisions of the law, and that such failure was the direct and proximate cause of the accident and injury of which he complains, he would be guilty of negligence in the particular charged, and in that event he cannot recover in this case.'

'(20) * * * If you find from the evidence that the plaintiff was guilty of negligence in this particular, and that such negligence on his part was the proximate cause of the accident, then the plaintiff cannot recover; but if you do not so find, you should disregard such charge of negligence and determine whether or not the plaintiff is entitled to recover must the instructions heretofore given you.'

We cannot approve these instructions on negligent cause necessary to defeat recovery. The trial...