Auen v. Kluver

• Citation: 95 N.W.2d 273,250 Iowa 619
• Decision Date: 10 March 1959
• Docket Number: No. 49647,49647
• Parties: Melba AUEN, Plaintiff-Appellee, v. Alvin KLUVER, Defendant-Appellant. Eilert AUEN, Plaintiff-Appellee, v. Alvin KLUVER, Defendant-Appellant.
• Court: United States State Supreme Court of Iowa

Page 273

95 N.W.2d 273

250 Iowa 619

Melba AUEN, Plaintiff-Appellee, v. Alvin KLUVER, Defendant-Appellant.

Eilert AUEN, Plaintiff-Appellee, v. Alvin KLUVER, Defendant-Appellant.

No. 49647.

Supreme Court of Iowa.

March 10, 1959.

Edson, Hamilton & Skinner, Storm Lake, for defendant-appellant.

Edward S. White, Carroll, for plaintiff-appellees.

LARSON, Justice.

Appellant assigns two errors in this appeal. The consolidated damage actions involve an automobile collision on a rural highway. It is appellant's contention that from the record taken as a whole, the court should have found that the plaintiff Eilert Auen was guilty of contributory negligence as a matter of law, and that the record disclosed such prejudicial conduct on the part of plaintiffs' attorney that a new trial should have been granted. The trial court submitted the issue of contributory negligence to the jury, overruled defendant's motion to direct a verdict, and denied his motion for a new trial. The trial court was right.

Two separate actions for personal injuries suffered in an automobile collision were brought against the defendant. In one case the plaintiff was Eilert Auen, driver, and in the other his wife Melba Auen, who was riding with her husband. The cases were consolidated for trial. The record discloses the following undisputed facts.

The accident occurred near the town of Wall Lake, Iowa, about 5 P.M. on October 13, 1957. At that time plaintiff Eilert Auen, with his wife as a passenger, driving west on a gravel road approximately 24 feet wide, reached a point near the crest of a small hill or knoll adjacent to a driveway leading north to a farmyard. At the same time and place defendant was driving his vehicle east, and the two collided, with the point of impact on each car at or near the left front headlight or fender. Both drivers claimed to be on their own one half of the traveled portion of the highway at the time, and with the exception of a fourteen year old boy sitting in a car in the barnyard to the north, there was no other eyewitness to the accident. After the collision plaintiffs' automobile was found on the north half of the highway facing south, and the defendant's automobile was on the south edge of the road with its rear wheels in the ditch facing north. There were no discernible skid marks on the road. The cars were badly damaged. Both the plaintiffs were seriously injured.

Defendant relies greatly upon the statement in cross-examination of the plaintiff Eilert that he did not see the defendant until they were some 20 or 30 feet apart, to sustain his contention that Eilert was guilty of contributory negligence. He contends that admission discloses plaintiff's negligence in failing to maintain a proper lookout. He further contends, from all the other circumstances disclosed, it was evident that this negligence of plaintiff did contribute to his injury and, therefore, he cannot recover in his action for damages.

This is another matter where the law is quite clear, but the application sometimes becomes obscure with varying factual situations.

I. It is well settled in this state that for the purpose of a ruling on a motion for a directed verdict, the evidence must be viewed in its most favorable light for the plaintiff. Huffman v. King, 222 Iowa 150, 157, 268 N.W. 144, and authorities cited therein; Wiese v. Hoffman, 249 Iowa ----, 86 N.W.2d 861, and cases cited.

Appellee contends there is nothing in the record indicating that the situation facing him was fraught with danger which would require of him greater care in maintaining a lookout than that which should be maintained by the ordinary prudent driver under these circumstances. Mueller v. Roben, 248 Iowa 699, 705, 82 N.W.2d 98, 102. The weather was clear and the roadway dry and normal. He testified he was driving west on his side of the road at a speed of 35 to 40 miles per hour and, as he approached the crest of the hill, 'was looking west'. In the Mueller case we said: "The proper object of one's watchful care or concern' * * * is that watchfulness which a prudent and reasonable person must maintain for his own safety and the safety of others, taking into consideration the circumstances with which he is immediately concerned or confronted.'

In order for defendant to prevail in his contention that Mr. Auen was negligent as a matter of law, it was imperative that the record disclose two things as a verity i. e., (1) that plaintiff Eilert failed to maintain a proper lookout under the circumstances, and (2) that this failure, if it was a failure, contributed in any manner or degree to his injury or damage. Albert v. Maher Bros. Trans. Co., 215 Iowa 197, 243 N.W. 561. Appellee contends the record fails to disclose any more than a question of fact on these important issues.

II. Contributory negligence and proximate cause, we have often said, are strictly issues of fact and are ordinarily for the jury except where, under the entire record, plaintiff's contributory negligence is so palpable that reasonable minds may fairly reach no other conclusion. Then and only then does the question become one of law for the court. Miller v. Griffith, 246 Iowa 476, 479, 66 N.W.2d 505; Kinney v. Larsen, 239 Iowa 494, 498, 31 N.W.2d 635; Howie v. Ryder & McGloughlin, 244 Iowa 861, 865, 58 N.W.2d 389. In Leinen v. Boettger, 241 Iowa 910, 926, 44 N.W.2d 73, 82, we said: 'It needs no citation of authority that the issue of freedom from contributory negligence on the part of the plaintiff is usually one of fact and not of law, and is peculiarly and ordinarily for the determination of the jury, and that it is only in the rare and exceptional case, and where the lack of reasonable care is so manifest, flagrant, palpable, that reasonable minds may fairly reach no other conclusion, that the question is one of law for the court. (Citing many cases.)' We have never departed from this rule and we are not so inclined at this time.

In the light of these well-established rules, we consider the facts, circumstances, and testimony which appellant believes discloses a lack of reasonable care on behalf of plaintiff Eilert Auen.

The plaintiff Eilert Auen testified on direct examination that, 'I was travelling on the right side of the road. I was going up that hill and just as I got almost to the driveway Mr. Kluver came over the hill and he ran into me. At the time Kluver's car struck mine I was on the right side of the road. * * * As I approached the crest of the hill I was looking west.'

On cross-examination he testified, 'I first saw the Kluver car when I got to the crest of the hill. I just saw the short distance--then it hit.' To the question 'Less than 20?', he said, 'Well, I wouldn't say. Somewhere in there. I wouldn't know.' 'Q. In other words it was close? A. Yes. Q. Meaning somewhere around 20 feet approximately, give or take 5 feet or 10 feet either way--probably not down, but up--and that's the first time you observed it? A. Yes.'

It is clear that this testimony alone could do no more than raise a fact question as to whether or not plaintiff Eilert maintained a proper lookout. He testified he was driving west on the right side of the road and looking west. He stated that he saw the defendant's car a short distance before the collision, and merely guessed at the distance at defense counsel's suggestion. In fact, he said it was close, gave the locality where he first saw defendant, and said he didn't know the distance.

True, there was testimony by highway patrolmen that cars approaching each other at this spot on the highway first became visible at about 300 feet apart. Then only the tops of the cars could be seen. As the distance narrowed, more of the cars came into view. The defendant was driving approximately 40 miles per hour, so the distance of 300 feet would have been covered by both vehicles in four or five seconds after they could have detected each other. Plaintiff approaching the crest of this hill had a right to presume, until he knew or should have known otherwise in the exercise of ordinary care, that any vehicle approaching from the opposite direction would not be in the north lane of travel, Section 321.304(1), I.C.A., and the jury could well find that Mr. Auen was in the exercise of ordinary care in the operation of his car as he approached this hill crest. Central States Elec. Co. v. McVay,...