Bangs v. Keifer

• Decision Date: 10 February 1970
• Docket Number: No. 53854,53854
• Citation: 174 N.W.2d 372
• Parties: David BANGS, Appellant, v. Hillary G. KEIFER, Appellee.
• Court: Iowa Supreme Court

Page 372

174 N.W.2d 372

David BANGS, Appellant, v. Hillary G. KEIFER, Appellee.

No. 53854.

Supreme Court of Iowa.

Feb. 10, 1970.

Rehearing Denied April 6, 1970.

Alfred A. Beardmore and T. A. Beardmore, Charles City, for appellant.

Larson & Carr, Charles City, for appellee.

LARSON, Justice.

The plaintiff David Bangs brought this action at law for damages as a result of an accident at a street intersection in Charles City, Iowa, on March 11, 1967. When defendant's automobile, driven with his consent by his son, failed to slow or stop before entering this stop intersection, it struck the left rear of plaintiff's automobile. Defendant pleaded legal excuse, claiming that the accelerator on his automobile unexpectedly stuck as it approached the intersection and that reasonable efforts to remedy the situation failed. Although plaintiff objected to any instruction on legal excuse, and particularly the one proposed by the court, Instruction No. 13 was given and the jury returned a verdict for defendant. Plaintiff appealed. We affirm.

Errors relied on for reversal are: (1) The court erred in submitting an instruction on legal excuse when as a matter of law the defendant's evidence showed that it was reasonably practicable for the defendant's driver to avoid violating the statutes. (2) The court erred in giving Instruction No. 13, the legal excuse instruction, in that it failed to instruct the jury that a legal excuse must be something that made it reasonably impracticable for the defendant's driver to comply with the statute or statutes, and merely instructed it that if the defendant's driver acted as a reasonably prudent man under the circumstances he would not be negligent.

I. There is no substantial dispute in the evidence. Defendant's driver admitted that he did not stop at the stop sign before entering the intersection, that he entered it at an unlawful speed of approximately 40 miles per hour, and that his car struck plaintiff's vehicle while in the intersection. His testimony, corroborated by two of his passengers, was that as he approached the intersection when about half a block or 138 1/2 feet therefrom, he discovered that his accelerator was stuck. It also appeared when he entered that block his speed was about 15 miles per hour. At first he accelerated his speed, but as he approached the intersection and let up on the accelerator, there was no response. At this time his speed had increased to about 30 miles per hour and a light application of his brakes did not help. Concluding that his accelerator was stuck, he attempted to free it by kicking and jiggling it, but to no avail. He then discovered plaintiff's vehicle, applied his brakes hard, sliding all four of his wheels, but this did not slow his car sufficiently to avoid the collision.

On cross-examination defendant's driver admitted If he had thrown the car out of gear when he first discovered the stuck accelerator, or If he had at that time turned off the ignition, the brakes would have stopped his car before it entered the intersection. His passengers were not quite so sure. At any rate he did not attempt those remedies, asserting he did not have the additional time to do so.

Appellant argues that, because of the driver's admission of several statutory violations, plus his statement that there was something he could have done to avoid the collision besides trying to free the accelerator, he was not entitled to a legal excuse instruction.

Appellee argues that from this record it appears defendant's driver had less than two seconds to act in the best and most effective way to avoid violating these statutory mandates, that although perhaps hindsight is better than foresight, it is clear the driver was faced with an emergency not of his own making, and that this is a classic example of the reasonable and proper application to our heretofore-recognized and adhered-to legal excuse doctrine.

II. Legal excuse, we have said, is a doctrine by which one seeks to avoid the consequences of one's conduct by showing justification for acts which would otherwise be considered negligent. Gibbs v. Wilmeth, Iowa, 157 N.W.2d 93, 96. This doctrine has been considered and applied by our court many times. As a result of our leading case of Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552, 554, legal excuse has been defined to mean (1) anything that would make it impossible to comply with the statute or ordinance; (2) anything over which the driver has no control which places his car in a position contrary to the provisions of the statute or ordinance; (3) where the driver of the car is confronted by an emergency not of his own making and, by reason thereof, he fails to obey the statute; (4) where a statute specifically provides an excuse or exception. Baker v. Wolfe, Iowa, 164 N.W.2d 835, 838; Pinckney v. Watkinson, 254 Iowa 144, 116 N.W.2d 258; Oakes v. Peter Pan Bakers, Inc., 258 Iowa 447, 138 N.W.2d 93, 10 A.L.R.3d 247; Peters v. rieck, 257 Iowa 12, 131 N.W.2d 529; McCoy v. Miller, 257 Iowa 1151, 136 N.W.2d 332; Gibbs v. Wilmeth, supra; Yost v. Miner, Iowa, 163 N.W.2d 557; Clubb v. Osborn, 256 Iowa 1154, 130 N.W.2d 648; Winter v. Moore, 255 Iowa 1, 121 N.W.2d 82; McKeever v. Batcheler, 219 Iowa 93, 257 N.W. 567; 7 Am.Jur.2d, Automobiles and Highway Traffic, § 359, pp. 905, 906; Iowa State Bar Association's Uniform Jury Instruction No. 5.7, Legal Excuse.

A violation of statutory rules of the road or ordinances, of course, constitutes negligence per se, and to excuse such a violation the emergency must not have been caused or contributed to by the one claiming legal excuse. Gibbs v. Wilmeth, supra, and citations; Florke v. Peterson, 245 Iowa 1031, 1034, 65 N.W.2d 372, 373; Winter v. Moore, supra.

III. An emergency has been defined as (1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action, exigency, pressing necessity. Oakes v. Peter Pan Bakers, Inc., supra, 258 Iowa 447, 458, 138 N.W.2d 93, 100, 10 A.L.R.3d 247; Young v. Hendricks, 226 Iowa 211, 215, 283 N.W. 895, 898; Harris v. Clark, 251 Iowa 807, 810, 103 N.W.2d 215, 217; Yost v. Miner, supra; Band v. Reinke, 227 Iowa 458, 288 N.W. 629; Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507; Noland v. Kyar, 228 Iowa 1006, 292 N.W. 810; Fagen Elevator v. Pfiester, 244 Iowa 633, 56 N.W.2d 577; Iowa Uniform Jury Instruction No. 5.4, Sudden Emergency.

The extent and nature of an emergency is usually a fact question and, if there is substantial evidence that an emergency had developed, the jury should be instructed thereon. Yost v. Miner, supra, Iowa, 163 N.W.2d 557, 562.

IV. Appellant's first contention poses the question of whether, in the case of a sudden emergency resulting in a statutory violation, the driver of a motor vehicle must be found negligent as a matter of law unless he can show by a preponderance of the evidence that he comes within all three of the categories recognized in Kisling v. Thierman, supra, 214 Iowa 911, 243 N.W. 552, or under the exception in the fourth category. We have not so construed this law. The claimant may choose his category. Florke v. Peterson, supra, 245 Iowa 1031, 65 N.W.2d 372.

Appellant's principal contention, however, is that, in order to excuse a violation of a statutory rule of the road constituting negligence per se which resulted from an emergency not of his own making, one must establish that he could do nothing 'practicable' that would have avoided the violation and that the action of a reasonably prudent man in such an emergency would not be a proper issue for jury determination. We cannot agree.

We have never adopted the 'practicable' approach to this problem, but have always adhered to the reasonably-prudent-man test to determine whether one acted properly in an emergency not created or contributed to by him. We have always permitted a jury to find compliance with the statute or statutes involved was impossible if he acted as a reasonably prudent man in his attempt to avoid the violation. Since to adopt the 'practicable' approach here would compel a finding of negligence as a matter of law, we decline to do so.

We have consistently held, when one has not caused or contributed to the emergency facing him, he is not negligent for statutory violations if the jury finds he acted as a reasonably prudent person placed in that circumstance.

In any event, in the matter before us it is not seriously claimed that the emergency facing defendant's driver was caused or contributed to by him, nor was it something over which the driver had control which placed his car in a position contrary to the provisions of a statute or ordinance. It is clear that the statutes involved did not themselves specifically provide an excuse or exception so that this claim of legal excuse must be based upon the first category, which would be anything that would make it Impossible to comply with the statute or ordinance. The question of whether it was possible or impossible is generally one for the jury under proper instructions from the court. We can think of no better instructional guideline than that the acts must be those of a reasonably prudent man faced with that emergency, and hold, if we are to recognize and apply a legal excuse doctrine, it is the just and fair method to determine that fact.

Appellant relies heavily upon the case of Bush v. Harvey Transfer Co., 146 Ohio St. 657, 664, 665, 67 N.E.2d 851, 855, 856, which appears to reject the so-called common-law rule of reasonable care under the circumstances in cases involving legal excuse for violation of safety statutes. It is true, the Ohio Supreme Court said therein: 'Since the failure to comply with * * * a safety statute constitutes negligence per se, a party guilty * * * cannot excuse himself * * * by showing that 'he did or attempted to do what any reasonably prudent person would have...