Anderson v. Kist

• Decision Date: 19 November 1940
• Docket Number: 45303.
• Parties: ANDERSON v. KIST.
• Court: Iowa Supreme Court

294 N.W. 726

229 Iowa 462

ANDERSON v. KIST.

No. 45303.

Supreme Court of Iowa.

November 19, 1940

Appeal from District Court, Hamilton County; H. E. Fry, Judge.

Action to recover damages for injuries sustained in an automobile accident. Verdict for plaintiff. Defendant appealed.

Affirmed.

Evert McGrath, of Clarion, and Putnam, Putnam, Fillmore & Putnam of Des Moines, for appellant.

G. O Blake, of Jewell, and Burnstedt, Hemingway & Hemingway, of Webster City, for appellee.

STIGER, Justice.

About 6 o'clock in the evening of December 24, 1937 defendant's semitrailer was being driven north on Highway 69 in Hamilton County by William Cole. Eugene Kist was the operator of the truck and Cole was his assistant. The truck was about 35 feet long and consisted of a tractor and trailer. William Cole gave the following description of the truck: " The build of the tractor is on the same line as a big truck except it is the motive power. The tractor part has a frame and a chassis. The difference in this particular equipment that we were driving is that the trailer is really a separate chassis, and the front end of it is hooked on to the tractor rather than the ordinary truck where the body is back of the engine and the cab."

About 2 miles north of the town of Jewell Highway 69 intersects with an east and west graveled road. There is a schoolhouse adjacent to the northwest corner of the intersection. As Cole was driving the truck north on the east side of Highway 69 across the intersection, he observed an automobile in the ditch a short distance north of the intersection on the west side of the highway. He stopped the truck about 50 feet north of the intersection. After telling the occupants of the car he would pull it out of the ditch, Eugene Kist backed the truck south to the intersection, then drove northwest about 60 feet, crossing over to the west side of Highway 69, stopped the truck, then backed south on the west side of Highway 69 and stopped the truck close to the car in the ditch. When the truck stopped, the tractor was on the west side of 69 facing in a northeasterly direction and the trailer was immediately behind the tractor facing somewhat in a more northeasterly direction than the tractor, the rear of the trailer being out on the west shoulder of the highway a distance of about 3 feet from the edge of the pavement. Very soon after the truck finally stopped on the west side of the pavement as above described plaintiff's car collided with the trailer on the west shoulder. When about 65 feet north of the truck plaintiff had driven out on the west shoulder and then drove south thereon to avoid hitting the truck.

Defendant's main assignment of error is that the court erred in overruling his motion for directed verdict. In presenting this issue on appeal defendant does not claim that he was not negligent; he contends only that plaintiff was guilty of contributory negligence as a matter of law. In determining this question the evidence most favorable to plaintiff must be accepted.

We will now refer to plaintiff's testimony. He testified: " I first noticed the lights of the truck as I drove over a rise in the pavement about a quarter of a mile north of the schoolhouse which is near the intersection. The highway was level from this rise in the pavement south to the intersection. The pavement was dry but the shoulder was covered with sleet. I was traveling about 45 miles per hour when I first noticed the lights. I continued south on the west side of the highway, watching the lights which, apparently were not on my side of the pavement. They appeared to be on the east side of the road. I saw the lights coming and thought nothing of it any more than meeting any other lights on any other car until I got down near them. When I was about 500 feet north of the intersection I slowed down to about 35 miles per hour and dimmed my lights. I got no response when I dimmed my lights and I still thought they were on the east side of the road. The black lines from the lights shown in such a way I couldn't tell but what they were on their own side and when I got so close I couldn't stop, or felt that I couldn't, I immediately steered the car to the shoulder which, by instinct, I suppose to the right. I kept looking down the road all the time I was driving south. As I was going south on the pavement the lights on the truck looked just like any lights coming-meeting any lights. They looked that way all the way until I got to the truck. I thought it was a truck because the lights were wider apart and bigger than passenger cars generally have. Up to the time I was about 65 feet north of the truck, I believed it was moving, and on the east side of the road. I applied my brakes and pulled my car to the right when about 65 feet north of the truck. I did not put my brakes on hard because I made the turn to the right at the same time and knew it was icy on the shoulder. When I was 65 feet north of the truck I could have stopped my car within 70 to 80 feet. I applied my brakes and pulled my car to the right when about 65 feet north of the truck. I could not see beyond the front lights of the truck. I was blinded as to seeing anything beyond the front end of the tractor. My car was entirely on the west shoulder when I passed the truck. I was going about 25 miles per hour when I passed the front end of the truck and hit the trailer. When I passed the truck and hit the trailer I was driving on the west shoulder. It was the back of the combination that I hit on the shoulder."

Plaintiff was not the only traveler approaching from the north who thought the truck was on the east side of the highway and moving. The headlights of the truck, shining in a northeasterly direction, gave the impression the truck was on the east side of the highway to such a traveler.

C. R. Anderson, who approached the truck from the north and followed the identical route taken by plaintiff in avoiding a collision with the front end of the truck, testified: " As I was coming south approaching these lights I didn't notice whether they were moving or not. I presumed that they were moving. I was possibly 75 to 100 feet from it before I knew there was something wrong. The lights appeared to be on the east side. I was some 75 to 100 feet before I observed that they were not on the east side. I then observed another car coming from the south. I knew they were on the west side then."

Kist testified that " another car (C. R. Anderson's) came down the same identical place Dr. Anderson's did while we were there."

Dr. Harris testified: " I first observed lights at the intersection by the schoolhouse as I was driving down the highway when I was about a half a mile north of the intersection. I noticed the car's headlights. I couldn't tell when I first saw them whether they were moving or not. I was somewhere from 75 to 100 feet from the lights before I realized they were standing still and realized the lights were on my side of the road."

Eugene Kist testified that after he stopped the truck he shut the cab door and reached down to get one of the fusees to set out in front of the truck. He further testified: " As I reached down, it took a few seconds to get it out of the holder, I got the fusee and raised up and just started to open the door of the truck to get out and I noticed a pair of headlights right in front of the tractor coming on the west side of it and then I heard a loud crash."

Cole testified that after the truck stopped he stepped behind the trailer and after a few seconds he heard the roar and moan of a motor, stepped on the west shoulder and saw plaintiff's car about 10 feet in front of the tractor and on the west shoulder.

The jury could have found that the accident occurred a few seconds after the truck stopped and that it was maneuvering on the highway while plaintiff was approaching from the north. Plaintiff states that it appeared to be moving until he was within 65 feet north of it.

We are of the opinion the court was right in submitting the question of contributory negligence to the jury.

I.

Appellant's first point is that plaintiff was contributorily negligent because he voluntarily and heedlessly thrust himself into obvious danger. His contention is that plaintiff drove directly toward the truck for a distance of a quarter of a mile without paying any attention to it. Appellant states: " When plaintiff was 65 feet from the truck and was blinded by the headlights of the truck and could see nothing beyond them, he drove onto the right shoulder without even so much as a glance ahead to determine whether or not the way was clear. He thus thrust himself into a zone of obvious danger. Plaintiff did not exercise any care but proceeded blindly into obvious certain danger."

This statement ignores plaintiff's...