Arenson v. Butterworth

• Citation: 54 N.W.2d 557,243 Iowa 880
• Decision Date: 28 July 1952
• Docket Number: No. 48072,48072
• Parties: ARENSON v. BUTTERWORTH.
• Court: United States State Supreme Court of Iowa

Page 557

54 N.W.2d 557

243 Iowa 880

ARENSON v. BUTTERWORTH.

No. 48072.

Supreme Court of Iowa.

July 28, 1952.

Loth & Melton, of Fort Dodge, for appellant.

Bradshaw & Crawford, of Fort Dodge, for appellee.

GARFIELD, Justice.

Central avenue in the city of Fort Dodge runs about east and west. Twelfth street runs about north and south at the east end of Central avenue. Nearly all east bound traffic on Central turns either south or notrh on 12th street. A narrow gravel driveway runs on east from 12th but it is used infrequently. For practical purposes it is a 'T' intersection with 12th forming the top of the 'T' and Central the base. There are traffic control signals--stop and go lights--at the intersection.

Plaintiff, age 69, walked north on the sidewalk on the east side of 12th to the northeast corner of the intersection. There she says she waited for a green light so she could cross 12th and when the light turned green she started across. She testifies she looked both ways for traffic and saw none except a car coming east on Central between 11th (a short block west of 12th) and 12th. Defendant was driving east on Central, turned north (left) on 12th, and his left front fender struck plaintiff when she was a little more than half way across 12th.

Defendant and another witness testify defendant reached 12th when the light was red, stopped and waited for it to turn green before starting his left turn. Plaintiff, however, says the light was green when defendant reached the intersection and he made no such stop. Defendant and two other witnesses testify he gave a hand signal to indicate a left turn. We will refer to other evidence later.

The trial resulted in verdict and judgment for plaintiff for $2,000 from which defendant has appealed. It is claimed some instructions to the jury are erroneous, there is insufficient evidence to warrant submission of some grounds of negligence and the damages are excessive.

I. Instruction 8 states a pedestrian at an intersection controlled by traffic signals, while proceeding in accordance with the signals, in any marked or unmarked crosswalk, has the right of way over vehicular traffic. Defendant's requested instruction H asserts plaintiff had no preferred right of way over a vehicle turning left as permitted by a traffic signal, that both pedestrian and motorist under such circumstances must exercise due care without either having any preference over the other in the matter of right of way.

Defendant objected to instruction 8 for the reasons suggested in request instruction H, which was refused, and also because it should have stated that if plaintiff stopped with the apparent intention of permitting defendant to proceed, she relinquished her right of way. Requested instruction H was properly refused and the ground of exception to instruction 8 based thereon is not good.

Section 321.257(1), Code 1950, I.C.A., provides that a green light shall indicate:

'Vehicular traffic facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. But vehicular traffic shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection at the time such signal is exhibited.

'Pedestrians facing the signal may proceed across the roadway within any marked or unmarked crosswalk.' (Italics added.)

Defendant argues the first seven words we have italicized indicate that the only pedestrian entitled to the right of way at an intersection controlled by traffic signals is the one caught in the intersection when the light changes to red against him, and a pedestrian who enters the intersection with the same light that lets in a motorist who expects to turn has no preference over such motorist. According to this argument plaintiff would have the right of way only over a motorist coming from the north or south on 12th who entered the intersection when the light facing plaintiff turned red and the light facing such motorist turned green.

The first italicized clause was doubtless intended to give the right of way to other vehicles and pedestrians lawfully in the intersection when the light changes against them so they may clear the intersection without being subjected to the dangers of cross traffic. However, the last sentence in section 321.257(1), quoted above, which defendant ignores, seems clearly to give a pedestrian who enters an intersection at a crosswalk, with a green light facing him, the right of way over a motorist who turns across the pedestrian's path. The legislature could hardly have intended that such a pedestrian may proceed across the roadway if a motorist has an equal right to turn into the pedestrian's path at the risk of possible injury to him.

Section 321.327 states: 'Where traffic-control signals are not in place or in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any * * * crosswalk at an intersection, except as otherwise provided in this chapter.'

Clearly under 321.327 a pedestrian in a crosswalk at an intersection where traffic signals are not operating has the right of way over motorists. (None of the exceptions applies here.) See Andrew v. Clements, 242 Iowa 144, 45 N.W.2d 861, 864. It is not probable the legislature intended a pedestrian who enters a crosswalk with a green light facing him has a lesser right of preference than one who enters where no signal is operating.

Our conclusion accords with what we say in State v. Paul, 242 Iowa 853, 48 N.W.2d 309, 311, where the factual situation is the same. A pedestrian was crossing an intersection controlled by a signal, with a green light facing him, when a motorist entered on the same light from the opposite direction, made a left turn and collided with the pedestrian. After quoting section 321.257(1) we say, 'he had the right of way and it was the duty of defendant in driving his car to have yielded such right. His failure to do so was a violation of said statute.'

II. The second ground of defendant's exception to instruction 8 is that it should have stated plaintiff relinquished her right of way if she stopped with the apparent intention of permitting defendant to proceed. It is doubtless true that a pedestrian entitled to the right of way may relinquish it by some unequivocal act. See in this connection Miller v. Utah Light & Traction Co., 96 Utah 369, 86 P.2d 37, 38, 39; Guillory v. United Gas Public Service Co., La.App., 148 So. 274, 277, 278. However, we think the evidence here would not warrant a finding plaintiff relinquished in favor of defendant the right of way to which she was entitled and that the second ground of defendant's exception to instruction 8 does not entitle defendant to a reversal.

Sole basis for this claim of error is testimony of defendant and his witness Klinger that plaintiff momentarily stopped after she had started across the intersection, defendant stopped about the same time, they both started again at the same time, practically, and the collision occurred. Defendant does not say he believed plaintiff was stopping to permit him to pass nor that he started up in reliance thereon, nor is it to be fairly inferred plaintiff stopped with the actual or apparent intention of permitting defendant to proceed. A finding that a pedestrian relinquished her right of way should not be based on such evidence as we have here.

Defendant cites no authority that sustains this claim of error. Consolidated Gas, E. L. & P. Co. v. Rudiger, 151 Md. 226, 134 A. 326, 329, fully supports our conclusion. There defendant's chauffeur gave this testimony which is absent here: 'Mr. Rudiger looked, and walked out into the road. He stood there, and looked at me, as if he was deliberately standing there to let me pass. * * * After I got close to Mr. Rudiger, I thought he was going to let me pass, and I paid attention to machines that might shoot out on the road on the right. I forgot about Mr. Rudiger, and, when I looked around again, he was right in front of me."

Defendant's requested instruction (prayer) stated: "and, if the jury further find that the plaintiff stopped at a point at or near the center of York road, and looked in the direction of the defendant's automobile, then the chauffeur driving said automobile had the right to assume that the plaintiff would give him the right of way'.

In holding the request was properly refused the court says (at page 331 of 134 A.): 'It can hardly be assumed, from the mere fact that the plaintiff, while in the center of the road, stopped and looked in the direction of the automobile, that he would there stop and permit the automobile to pass. If not his duty to look while in the center of the road, it was certainly the exercise of commendable caution and care for him to do so, and, because he stopped while looking, that would not warrant the assumption on the part of the chauffeur * * * the plaintiff was to remain where he was without moving until he had passed. * * * The court, we think, committed no error in its refusal to grant this prayer.' (Italics ours.)

III. Defendant excepted to the submission of the charge he was negligent in failing to give warning, on the ground no warning was necessary under the circumstances and failure to warn could not be the proximate cause. It is argued that a warning would have served no purpose since plaintiff testified she saw defendant's car approaching. It is true that one who knows all of which a warning could have informed him may not complain that none was given. See Sandell v. Des Moines City R. Co., 184 Iowa 525, 532, 168 N.W. 226; Wilkinson v. Queal Lbr. Co., 203 Iowa 476, 479, 212 N.W. 682; Elliott v. Des Moines R. Co., 223 Iowa 46, 50, 271 N.W. 506.

We hold it was proper to submit this ground of negligence. There is no complaint against the instruction which states the law relating thereto. The jury was simply...