Albrecht v. Waterloo Const. Co.

• Decision Date: 13 November 1934
• Docket Number: No. 42589.,42589.
• Citation: 218 Iowa 1205,257 N.W. 183
• Parties: ALBRECHT v. WATERLOO CONST. CO.
• Court: Iowa Supreme Court

218 Iowa 1205

257 N.W. 183

ALBRECHT

v.WATERLOO CONST. CO.

No. 42589.

Supreme Court of Iowa.

Nov. 13, 1934.

Appeal from District Court, Black Hawk County; George W. Wood, Judge.

This is an action for damages, by the next friend of Lucille Albrecht, for injuries received as the result of a collision between the automobile in which she was riding and a truck stopped on the right side of the pavement, about 4:30 p. m. on January 12, 1932. At the close of plaintiff's evidence, the defendant filed a motion for a directed verdict. The motion was sustained and judgment was rendered against plaintiff for costs. Plaintiff appeals.

Affirmed.

H. L. Leslie and Sager & Sweet, all of Waverly, for appellant.

McCoy & Beecher, of Waterloo, for appellee.

KINTZINGER, Justice.

The accident happened on Primary road No. 218, about a mile and a half south of Waverly, about 4:30 in the afternoon of January 12, 1932. At that time, the plaintiff, who was about 9 years of age, her sister, 14, and her brother, Harley, 16, all students in the Waverly public schools, were returning to their home, in a car driven by the plaintiff's brother Harley. It was still daylight, but the weather was rainy and somewhat foggy and visibility was poor. When the car in which plaintiff was riding reached the top of a hill on the highway south of Waverly, they saw the truck in question on the right side of the highway, at the bottom of the hill. The distance from the top of the hill to the truck, as shown by plaintiff's witnesses, is between 250 and 400 feet. The driver first saw the truck from the top of the hill, at least 250 feet ahead, but did not know it was a truck until he was about 150 feet from it. At that time, the truck was in plain view on the right side of the pavement, with the left side of the road clear and unobstructed. Owing to atmospheric conditions, the driver says he thought the truck was moving, until he came to a point about 25 feet from it, when he noticed it was standing still. At that time, his car was traveling about 25 miles an hour, and he attempted to turn his car to the left to avoid a collision, but failed. The entire left half of the roadway was clear, and if plaintiff's driver had turned out in time, the collision would have been avoided. All of plaintiff's witnesses, passing the truck shortly before, or shortly after the accident, testified that they noticed the truck was stopped when about from 100 to 200 feet away, and passed around it safely. The lights were not lit on either the truck or plaintiff's car. Although the visibility was not good on account of rain and fog, it was daylight enough to see the truck on the roadway from the top of the hill, at least 250 feet away. The plaintiff's driver saw the object, which turned out to be the truck, all of the time from the top of the hill to the truck, a distance of at least 250 feet, and knew of its presence in the road ahead. Plaintiff's driver kept watching the truck all the way until he was about 25 feet from it. Before that, he had not turned out or applied his brakes, although he slowed the car some by taking his foot off the gas. As a result of the collision, plaintiff was seriously injured.

The negligence alleged in plaintiff's petition was: (1) Allowing the car to be stopped on the traveled portion of a primary road; (2) that it violated rule No. 7 of the traffic regulations adopted by the state highway commission; and (3) in failing to warn approaching motorists of the presence of said truck on the highway, by giving suitable warning of its position, by a guard, flags, lights, or other signal.

At the conclusion of plaintiff's evidence, defendant moved for a directed verdict, in substance upon the following grounds: (1) That the evidence failed to show any negligence on the part of the defendant as alleged in plaintiff's petition; (2) that if there was any negligence on the part of the defendant, it was not the proximate cause of the collision, or the injuries resulting therefrom; and (3) that the proximate cause of the collision and injuries was the failure of plaintiff's driver to turn to the left or stop his car within the assured clear distance ahead to avoid a collision. This motion was sustained, and plaintiff appeals.

[1] I. One of the grounds of negligence alleged was the violation of rule No. 7, adopted by the state highway commission. This rule provides that “no vehicle shall stop on the traveled portion of any primary road except when such vehicle is disabled and unable to proceed without emergency repairs or change of tires.” We have recently held in the case of Goodlove v. Logan, 251 N. W. 39, that the statute authorizing the highway commission to make rules did not authorize the adoption of rule No. 7 and the same was therefore invalid. Upon this question, we are controlled by the ruling in the Goodlove Case, and there was no error in failing to submit the case to the jury on this ground.

II. Appellant also contends that the court erred in failing to submit the case to the jury on the ground of negligence in “stopping on the traveled portion of a primary road without giving any warning to approaching motorists of the position of said truck by a guard, flags, lights or other signal.”

[2] There is no statute in this state prohibiting motorists from stopping on a primary road. There is a statute requiring “the operator of a motor vehicle, * * * before stopping, * * * [to] first see that there is sufficient space * * * and * * * give a visible or audible signal to the * * * drivers of vehicles following, of his intention to make such a movement, by raising and extending the hand.” Section 5032. A violation of this statute, however, is not involved here because the truck had already stopped, and there is no evidence to show that the driver of the truck failed to give a signal to following vehicles of his intention so to do. The purpose of this statute is to require the driver of a forward car to give a signal of his purpose to stop, so that the driver of a following car may gauge his speed accordingly. Isaacs v. Bruce (Iowa) 254 N. W. 57, loc. cit. 59. In the instant case, however, the truck had already stopped, and the driver of plaintiff's car actually knew of its presence on the road ahead. It was therefore his duty, under section 5029, to drive his car at such a speed that it could be stopped within the assured clear distance ahead. He admits seeing an object for a distance of 250 feet, and admits knowing that it was a truck for a distance of 150 feet. The truck was at the bottom of the decline. It was light enough for him to see the truck, and he explains the accident by saying that he believed the truck was moving, but realized that it was not moving when it was 25 feet away. The stopping of the truck, without a light or signal, had nothing whatever to do with the collision. It was his duty to regulate the speed of his car in such a manner as to avoid the collision.

[3] It is the rule of law that stopping upon a paved highway is not in and of itself an act of negligence. 42 C. J. 1006; Scoville v. Clear Lake Bakery, 213 Iowa, 534, 239 N. W. 110;Hanson v. Manning, 213 Iowa, 625, loc. cit. 630, 239 N. W. 793;Harvey v. Knowles, etc., Co., 215 Iowa, 35, 244 N. W. 660;Collins v. McMullin, 225 Ill. App. 430;Morton v. Mooney (Mont.) 33 P.(2d) 262;Geisen v. Luce, 185 Minn. 479, 242 N. W. 8.

“The owner of a motor vehicle has the right to stop his vehicle in a street or highway, and in the absence of any governmental prohibition or restriction to permit a motor vehicle to stand in a street or highway is not of itself illegal or negligent, even though such vehicle is entirely unattended.” 42 C. J. 1006.

[4] It is claimed that the defendant was negligent in not having any lights or giving any warning to approaching motorists of the position of the truck on the highway. The record shows that the driver of plaintiff's car knew of the presence of defendant's truck upon the highway at least 250 feet away. The accident happened about 4:30 p. m., and it was still daylight. The truck could be observed from both directions for a distance of over 250 feet. Plaintiff's driver knew that there was an object on the highway when 250 feet away, and knew that the object he saw was a truck upon the right side of the pavement when he was 150 feet away. It is, therefore, clear that the absence of lights or other warning, to advise plaintiff's driver of the presence of the truck, was immaterial.

In Scoville v. Clear Lake Bakery, 213 Iowa, 534, loc. cit. 539, 239 N. W. 110, 112, we said: “The only function to be served by lights, or by an attendant, would be to warn travelers of the presence of the obstruction in the road. Such ground of negligence could not be available to a plaintiff, who saw the truck for hundreds of feet in his approach thereto, and had no need of further warning.”

In Wilkinson v. Queal Lbr. Co., 203 Iowa, 476, loc. cit. 479, 212 N. W. 682, 683, we said: “The appellee herself testifies that, long prior to her collision with the...