Andrews v. Struble, 53848

• Decision Date: 23 June 1970
• Docket Number: No. 53848,53848
• Citation: 178 N.W.2d 391
• Parties: Richard ANDREWS, Appellee, v. Leroy R. STRUBLE, Appellant. Leroy R. STRUBLE, Appellant-Cross Petitioner, v. Gary GOODBURN and Anderson Construction Co., a Corporation, Appellees-Cross Defendants.
• Court: Iowa Supreme Court

Page 391

178 N.W.2d 391

Richard ANDREWS, Appellee, v. Leroy R. STRUBLE, Appellant.

Leroy R. STRUBLE, Appellant-Cross Petitioner, v. Gary GOODBURN and Anderson Construction Co., a Corporation, Appellees-Cross Defendants.

No. 53848.

Supreme Court of Iowa.

June 23, 1970.

Paul J. Yaneff, Sioux City, for appellant.

Frank Jacobs, of Sifford, Wadden & Davis, Sioux City, for appellees-cross defendants.

John W. Gleysteen and William E. Kunze, of Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellee.

MASON, Justice.

This appeal is the result of a lawsuit following an automobile collision. Involved is a law action instituted by plaintiff Richard Andrews against LeRoy R. Struble for personal injuries and property damages and defendant's cross-petition seeking contribution in one division and indemnity in the other from Gary Goodburn and Anderson Construction Company, Inc., operator and owner respectively of a third vehicle, by reason of plaintiff's action. October 5, 1966, about 6:30 a.m. Andrews was driving his pickup truck north on Highway 31. Approximately a mile north of Smithland in Woodbury County a collision occurred between plaintiff's vehicle and defendant's vehicle parked in the east lane of the traveled portion of the highway, headed north. Plaintiff sustained personal injuries and his motor vehicle was demolished.

I. About 6 a.m. plaintiff left his home in Moorhead to drive to work west of Authon about 43 miles where he was employed by Anderson Construction Company. To get to his jobsite plaintiff went north through Smithland on a 22-foot-wide blacktop highway. As he left Smithland the road was good and clear, visibility good, although completely dark. He had his headlights on. North of Smithland the highway curves to the left and then straightens out north. As plaintiff came out of the curve he could see the point where the accident later occurred. He saw headlights of a car which appeared to be approaching from the north. When plaintiff first saw this car, it was about a quarter mile away and he could not definitely tell if it was moving. As plaintiff proceeded toward the car, the lights affected him a little, blinding him to a certain extent, and he slowed down by letting up on the accelerator. As he got about even with the oncoming car he first saw defendant's pickup truck without taillights in the east lane. He was 20 to 30 feet from the vehicle before realizing it was stopped or moving very slowly. He immediately stepped on the brake, but the vehicles collided.

Andrews testified he saw no flares or reflectors at the scene after the accident. It had been his experience that when following cars at night with their taillights on he could keep them in view when meeting oncoming traffic. At the point of the accident both shoulders adjacent to the highway were ten feet wide, each lane 11 feet. It was his opinion that the lights of the oncoming vehicle had been on high beam.

Defendant Struble was also going to work in Anthon at the time of the accident. He left his home approximately two miles from the point of the accident going north on Highway 31 from Smithland. After traversing the curve his pickup began to sputter, which he eventually determined was caused by an empty fuel tank. Having been driving between 50 to 55 m.p.h., he first coasted by a curve sign then eased off the blacktop, but because it felt a little soft, he pulled his vehicle back toward the paved roadway. When the automobile came to rest about 200 feet north of the curve, its right wheels were off the pavement. The pickup, seven to eight feet wide, extended onto the paved portion of the highway five to six feet. At that point he left his parking lights on, placing reflectors in front, at the side and to the rear of the vehicle (Code section 321.448). When placing the rear reflectors he noticed the taillights on his vehicle were working. He got a three-gallon gas can out of the pickup box, poured part of it in the gas tank, lifted the hood and poured another portion of it in the carburetor. Next he picked up the reflectors, placing them under the seat of the cab.

After Struble had been parked for about ten minutes Goodburn, another Anderson employee driving his employer's pickup, came from the opposite direction, stopped in the west lane of traffic 'right across' from Struble's pickup, with the front end of the Anderson vehicle possibly three to four feet south of the rear of the Struble truck. There were approximately five to six feet between the two pickups which blocked the entire road for any approaching traffic. Goodburn inquired if Struble needed help. Defendant told him he didn't believe so, that he didn't believe he'd have any further trouble, but Goodburn volunteered to 'stick around until I see what you are doing'.

While the parties talked for a few minutes, Goodburn's headlights remained on. There were no reflectors out. When headlights of an approaching vehicle became visible Struble informed Goodburn that he should pull his automobile off the road since their vehicles were blocking the entire road. Entering his own vehicle with the intention of starting it and driving away, Struble attempted to turn the switch on, but before he could, the collision occurred. He maintains that at no time had he turned the taillights off before the accident.

On cross-examination defendant Struble admitted after his vehicle stopped he did not examine the condition of the shoulder or attempt to use the pickup's starter and manual transmission to move it off the paved portion of the highway.

Deputy Sheriff Phelps arrived at the scene of the accident just after dawn. His examination at the scene disclosed there was a good, solid shoulder on the road. It was his opinion from examination of the debris and damage to the vehicles that defendant Struble's pickup had been parked in a stopped position at the time of impact with all four wheels on the pavement.

Dr. Albert D. Blenderman, Andrews' attending physician, testified that plaintiff told him at the hospital the lights of the car coming from the opposite direction had blinded him to the fact the pickup truck was standing on the highway.

II. Plaintiff alleged defendant's negligence in several respects was the proximate cause of his damage. In view of defendant's concession in written argument that the evidence generated a jury question, we do not repeat in detail the specifications submitted. Generally they contain essential allegations constituting violation of Code sections 321.354, 321.384, 321.387, 321.395 and 321.448.

Defendant in answer specifically denied plaintiff's allegations and asserted a proximate cause of plaintiff's damages was his own negligence in failing to have his car under control and keep a proper lookout; and in driving at an excessive speed under the circumstances to permit him to stop within the assured clear distance ahead.

Struble then filed his cross-petition as amended. After alleging necessary and essential allegations to state a cause for contribution and indemnity, he asserted each cross-defendant was negligent in (a) failing to dim his headlights (section 321.415), (b) stopping, parking and leaving his motor vehicle on the main traveled portion of the highway and failing and preventing a clear and unobstructed width of at least twenty feet of such part of the highway opposite said plaintiff vehicle (section 321.354), (c) stopping, parking and leaving his automobile on the main traveled portion of said highway when a clear view of said automobile was not available for a distance of 200 feet (section 321.354), (d) failing to warn Andrews of the presence of Struble's vehicle after stopping alongside it and obstructing its appearance, (e) failing to keep a proper lookout, (f) being otherwise careless and negligent and (g) failing to exercise due care under the existing circumstances.

Defendant's motion for directed verdict made at the close of plaintiff's evidence and renewed at the close of all evidence was overruled and Andrews' case submitted to the jury.

Cross-defendants moved for a directed verdict at the close of plaintiff's evidence as against plaintiff and against defendant on his cross-petition. There being no cause asserted by Andrews against cross-defendants, the motion was sustained as to him. The motion as to cross-petitioner was overruled.

After defendant rested, cross-defendants renewed their motion for directed verdict which was sustained. Plaintiff then called Goodburn as his witness.

Following a favorable jury verdict for plaintiff, defendants moved for new trial or judgment notwithstanding the verdict. In another motion defendant moved for new trial and judgment notwithstanding in his action against Goodburn and Anderson Construction. All motions were overruled.

Defendant appeals from both judgments.

III. As stated, this is a law action. Our appellate jurisdiction is not de novo but is confined to correction of errors assigned. Rule 334, R.C.P.

We consider first defendant's appeal from the trial court's rulings in regard to cross-defendants Goodburn and Anderson Construction Company. As to this aspect of the lawsuit defendant assigns four errors argued in two divisions. Three errors are contained in the first division. Summarized, they challenge correctness of the trial court's ruling in directing a verdict against defendant on his cross-petition.

Defendant maintains there was sufficient evidence to generate a jury question as to whether cross-defendants were negligent in failing to use their low beam headlights in violation of sections 321.384 and 321.415. Further, that cross-defendants were in violation of section 321.354 for blocking the lane opposite where defendant had stopped his vehicle. He points out that statutory rules of the road are cumulative and do not abrogate common law duties. They set the minimum, not the maximum, standard of care. Struble contends cross-defendants were concurring tort...