Anderson v. Wilcox

• Decision Date: 09 September 1971
• Docket Number: No. 54549,54549
• Citation: 189 N.W.2d 541
• Parties: Carl Raymond ANDERSON and Mary Ann Anderson, Appellants, v. James WILCOX, Appellee.
• Court: Iowa Supreme Court

Page 541

189 N.W.2d 541

Carl Raymond ANDERSON and Mary Ann Anderson, Appellants, v. James WILCOX, Appellee.

No. 54549.

Supreme Court of Iowa.

Sept. 9, 1971.

Thoma, Schoenthal, Davis, Hockenberg & Wine, Des Moines, for appellants.

Hopkins, Bump & Huebner, Des Moines, for appellee.

BECKER, Justice.

Action at law for damages for personal injury sustained as a result of a collision between a motorcycle operated by plaintiff Carl Raymond Anderson and pickup truck driven by defendant. The issues of defendant's negligence and plaintiff's contributory negligence were submitted to a jury. Verdict was for defendant. Plaintiffs' motion for a new trial was overruled. Plaintiffs appeal. Reversed and remanded.

Plaintiff Mary Ann Anderson sues for loss of consortium. The term plaintiff will hereafter be used to refer to Carl Raymond Anderson, the injured party. Plaintiff and defendant were employees of AMF Western Tool Company. The collision occurred in the company parking lot shortly after 3:30 P.M., May 30, 1969. Defendant was backing his pickup-camper out of an angle parking space into the exit lane which is 10 to 20 feet wide. Plaintiff was traveling west in the exit lane on a motorcycle. Defendant's pickup was facing morthwest as it was being backed out of the angle parking. Plaintiff's motorcycle was traveling west as it approached the rear of the truck.

Plaintiff testified he was moving approximately five m.p.h. He first saw defendant's truck when he was about five feet from it. The truck was then one-half to three-quarters into the lane. The plaintiff also said he was traveling two to three feet from the cars parked to his right to avoid oil drippings in the middle of the lane. When plaintiff first saw defendant he hollered 'whoa' in a loud voice, attempted to swerve to the left but was struck by the left portion of defendant's rear bumper on his right side.

Berthel Shank was operating a motorcycle 10 to 15 feet ahead of plaintiff. He had to swerve to avoid defendant's backward motion. Shank stated that he heard the plaintiff 'holler' before the collision.

The defendant testified he looked in the rear vision mirror before backing up. He neither saw the plaintiff nor heard him yell before the collision. In cross-examination he said:

'I had driven this camper quite a number of times before, and the only way you could see would be if you looked in my mirrors and I could see directly behind me, so I knew that I had a vision problem with this truck. There were blind spots on it. I knew that when I got the truck. In one smooth motion I backed out.'

The defendant stated he saw Shank through a mirror located on the right side of his truck, stopped, and then heard a 'thud'.

At the close of all the evidence defendant sought and obtained permission to amend his answer to allege contributory negligence for failure 'to sound his horn when sounding his horn was reasonably necessary to insure the safe operation of his vehicle and to warn the defendant of the plaintiff's approach.' Defendant stated the specification was based on section 321.432, Code, 1966.

I. Plaintiff's first assignment of error deals with the instruction concerning the 'sounding of the horn' specification. In pertinent part the instruction reads:

'If you find from a preponderance of the evidence that at said time and place plaintiff Carl Raymond Anderson observed the backward movement of defendant's motor vehicle in time to have sounded the horn on said plaintiff's motorcycle to warn defendant of said plaintiff's approach, and you further find that an ordinarily reasonable and prudent person under the same or similar circumstances would have sounded the horn on said motorcycle and you further find that at said time and place plaintiff Carl Raymond Anderson failed to use ordinary care to sound the horn on his motorcycle, such failure, if any, would constitute negligence on the part of said plaintiff.'

The objection, made after argument to the jury, when the instructions in their final form were submitted reads:

'Come now the plaintiffs and object to Instruction No. 12 wherein the Court instructs the jury with regard to failure by the plaintiff Carl Anderson regarding sounding of a horn warning of the plaintiff's approach. It would be the plaintiff's position that under the common law this instruction is too narrow; that the instruction should have allowed for any type of warning, whether it be by horn or by voice or in any other manner; that if in fact a warning was given, the jury should determine the sufficiency of that warning and not be limited to the approach that the instruction has here only as to the horn; * * *.'

In Instruction No. 6 the court told the jury the statutory rules of the road do not apply to this case because the incident occurred entirely on a private parking lot. Section 321, Code, 1971. Neither side challenges this instruction. Defendant contends there is a common-law duty to sound the horn. Plaintiff claims, and properly advised the court, that the common-law duty is to give an audible warning by sounding a horn or By otherwise giving a timely signal of his approach. This is the first fighting issue in the case.

Lawson v. Fordyce, 237 Iowa 28, 64, 65, 21 N.W.2d 69 (1945) states:

"Apart from specific legislative provision, a duty rests upon the operator of a motor vehicle to slow down and sound his horn Or otherwise give timely signal of his approach when danger would otherwise be incurred. This obligation is included in the common law duty to use reasonable care.' See, also, Shifman v. Whalen, 234 N.Y. 283, 137 N.E. 331; Fork Ridge Bus Line v. Matthews, 248 Ky. 419, 58 S.W.2d 615.

"Even in the absence of a statute or ordinance specifically requiring a warning, a motorist nevertheless should give warning to avoid possible danger to pedestrians if the exercise of reasonable care should so require.' 2 Blashfield, Cyclopedia of Automobile Law and Practice, Perm Ed., § 1251.

'In 3 Berry, Law of Automobiles, 7th Ed., § 3.152, the author states:

"Reasonable care may require that a motorist give a pedestrian warning though no statute imposes the duty." (Emphasis added.)

Nichols v. Snyder, 247 Iowa 1302, 1307, 78 N.W.2d 836, 839 (1956), is to like effect. We there quoted 60 C.J.S. Motor Vehicles § 288, pp. 674, 675:

"In the absence of statutory or other governmental regulation imposing a mandatory duty to do so, the duty to blow a horn or Give other warning signal of the approach of a motor vehicle depends largely on the circumstances * * *. It is the duty of the driver to give warning of the approach of the vehicle when this is Reasonably necessary to avoid danger or injury to others by according them an opportunity to take measures for their own protection * * *.' (Emphasis supplied).' (First emphasis supplied).

Since the statutory law of the road does not apply here, section 321, Code, 1971, the above common-law principles adopted by this court apply. Under this factual situation we find the instruction defining plaintiff's duty to warn defendant of his approach was, as plaintiff contends, too narrow.

Although the vehicles were traveling slowly the situation developed rapidly. An eyewitness, Gary Collins, testified:

'MR. KOEHN: How much time would you estimate elapsed from the time that you first saw Mr. Anderson, as you have said about fifteen feet away when Mr. Wilcox's vehicle was starting to come out, and the time that he started to make his left hand turn?

'MR. COLLINS: Well, you had two motions there; I mean one going one way and one going the other way coming together. Just a very slight second.'

Berthel Shank, who was driving a motorcycle immediately ahead and to the left of plaintiff, testified:

'* * * Mr. Anderson was going about the same speed because he was right behind me. I was going along there and all of a sudden there it was (Mr. Wilcox's truck) coming out, and I swerved over and just barely did miss him. I was up reasonably close to where he backed out and he came right out into the line of traffic there, backed right out. I couldn't say the speed he was going, but then he was backing out as if he thought everything was clear I presume, because he just backed right out. He didn't come gunning it right out of there or anything like that, but he did just back right out like he knew it was clear. He just backed right out, swung out. I was traveling in the southern lane and I was just barely able to avoid him. I didn't see any brake lights of any kind on his vehicle. I didn't hear any horn or any warning of any kind. Carl hollered and I just looked back over my shoulder when I heard him holler. I don't know what he said, he just hollered. * * *.

'Oh, gees, that's like that (indicating by snapping fingers). I mean, it was quick. It was such a short distance, I mean, he was right there, we were right there.'

With this evidence in the record plaintiff maintains the instruction should have included the concept 'or otherwise give timely signal of his approach'. He contends the jury could have found under this record that timely signal other than sounding the horn was in fact given but the instruction was prejudicially silent as to the latter element.

Robeson v. Dilts, 170 N.W.2d 408, 415 (Iowa 1969), states:

'In McCoy v. Miller, 257 Iowa 1151, 1154, 136 N.W.2d 332, 333, we said, 'It is well settled that instructions should be adapted to the record and that merely quoting the statute without relating it to the issues is insufficient.' To the same effect see Jakeway v. Allen, 226 Iowa 13, 17, 282 N.W. 374.'

Here the instruction did not set out the common-law doctrine heretofore recognized by the court nor was it properly adapted to the record. We hold failure to state the entire common-law rule in relation to duty to give warning by sounding the horn or give other audible warning was, under the circumstances shown here, reversible error.

II. Since this case must be remanded for new trial we consider plainti...