Beck v. Dubishar
| Decision Date | 08 March 1949 |
| Docket Number | 47367. |
| Citation | 36 N.W.2d 438,240 Iowa 267 |
| Parties | BECK v. DUBISHAR (DUBISHAR, Intervener). |
| Court | Iowa Supreme Court |
William Gray and Elliott, Shuttleworth & Ingersoll all of Cedar Rapids, for plaintiff-appellee.
Franken Keyes & Crawford, of Cedar Rapids, and Putnam, Putnam & Putnam, of Des Moines, for defendants-appellants.
Plaintiff brought suit for property damage to his car, due to a collision between plaintiff's car and car owned by defendant, Ben W. Dubishar, and being driven by defendant Vernon A. Dubishar. Defendants counterclaim for both personal injury and property damage. A jury returned a verdict for plaintiff and from a judgment entered in accordance therewith, defendants appeal.
Four propositions are urged as a basis for reversal: (1) Error in overruling motion for a directed verdict and for judgment not withstanding the verdict; (2) refusal to give requested instruction No. 5; and (3) refusal to give requested instruction No. 6; and (4) failing to submit an instruction on assured clear distance ahead.
The collision occurred at the intersection of two graveled country road. Appellee was driving west on an east-west road. Appellant was driving north on a north-south road. At the intersection, as one approached it from the east, visibility to the south was obstructed by a cornfield. There was no obstruction of visibility to the north. Likewise, visibility of one approaching the intersection from the south was obstructed to the right or east, and was clear to the left or west.
Appellee approached the intersection from the east, at an admitted speed of 50 to 55 miles per hour. Ahead and to the right, or north, there was no traffic, when, at a point about 100 feet east of the intersection, he first saw appellant's car as it entered the intersection from the south. He was unable to stop and collided with defendant's car.
I. Appellant's first contention is that appellee was guilty of contributory negligence as a matter of law and the trial court should have directed a verdict. This claim is based upon the alleged violation of Section 321.288, Code of 1946. It provides:
Appellant cites three Iowa cases as authority for the proposition that a speed of 50 to 55 miles per hour is, per se, a violation of Section 321.288, supra. The cases cited are not in point as to the factual situation nor as to the legal status of the respective parties. The cases are: Lang v. Kollasch, 218 Iowa 391, 255 N.W. 493; Wimer v. M. & M. Star Bottling Company, 221 Iowa 120, 264 N.W. 262, 263; Young v. Clark, 226 Iowa 1066, 285 N.W. 633. All three cases were under Section 5026.01, Code of 1939, which was repealed by chapter 175, Acts of 49th G. A., and what is now Section 321.319, Code of 1946, was substituted. Wimer v. M. & M. Star Bottling Company, supra, and Lang v. Kollasch, supra, involved left turns in the intersection while the Young case, supra, is based upon the theory that the defendant had entered the intersection prior to plaintiff and had the right of way.
In the case at bar, appellee was approaching the highway from appellant's right and under Section 321.319, Code of 1946, had the right of way. It is common knowledge that a speed of 50 to 55 miles an hour upon our highways is not, per se, an unreasonable speed. Under appellant's theory, any one who approaches an intersection at such speed is guilty of contributory negligence. True, in many cases such speed, and even many miles slower, might constitute contributory negligence, while in other cases, it might not. Many other elements that speed enter into the question. As stated in Davidson v. Vast, 233 Iowa 534, 10 N.W.2d 12, 16: 'Even if decedent were traveling at 50 miles per hour, we are not prepared to hold that he would thereby be guilty of contributory negligence as a matter of law. He had a right to assume, until he knew or in the exercise of reasonable care should have known otherwise, that any driver approaching from the east would comply with the statute governing the right of precedence. Whether appellee acted with reasonable caution in approaching the intersection is clearly a question for the jury under this record.
II. Appellant takes issue with the refusal of the trial court to give appellant's requested instructions No. 5 and 6. Both of these instructions deal with the question of the assured clear distance ahead. They are both long and will not be set out at length. They both are incorrect statements of the law, as may be illustrated by the following excerpt from requested instruction No. 6: '* * * in this connection you are instructed that it is the law of this state that 'no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead' * * *.' The requested instruction in stating the law fails to include therein what is a very material part thereof, to-wit, 'such driver having the right to assume, however, that all persons using said highway will observe the law' (being Section 321.285, Code 1946). It would have been error upon the part of the court if it had given the instructions as requested. Central States Electric Company v. McVay, 232 Iowa 469, 5 N.W.2d 817.
III. Appellant's final assignment of error is the failure of the trial court to submit to the jury, upon the counterclaim, the alleged specification of negligence as to the assured clear distance ahead rule.
It will be observed that appellee recovered a verdict at the hands of the jury, which necessarily determined in his favor, the negligence of the defendant, the proximate cause of the damage and the freedom of appellee from contributory negligence, which precludes appellant from a recovery under the counterclaim. Appellant is not therefore prejudiced by the failure to submit such issue, assuming, but not holding, that the same was properly in the case. Davidson v. Vast, supra. See also Angell v. Hutchcroft, 231 Iowa 1057, 3 N.W.2d 147; Davis v. Hoskinson, 228 Iowa 193, 290 N.W. 497; Smith v. Pine, 234 Iowa 256, 12 N.W.2d 236.
There being no error, the judgment of the trial court is affirmed.
Affirmed.
I respectfully dissent from the majority opinion and in so doing state my reasons therefor.
I. Robert G. Beck, plaintiff-appellee, at the time of the accident was 21 years old; he was a native of Massachusetts and had lived in Iowa a year; he held a pilot's license and was a flight instructor; he lived at Amana, Iowa, and was employed at the Cedar Rapids Municipal Airport. On the 29th day of July, 1947, he was driving from his place of employment to his home in a 1940 super four-door Buick sedan; the brakes were in good condition. He had gone over the road daily for three to four weeks and was thoroughly familiar with it and the intersection where the collision took place. He was traveling west on an east and west county road with crushed rock surface about twenty to twenty-five feet wide. The country was gently rolling and was down grade towards the intersection for about three-fourths of a mile. At the bottom of the grade the road intersected a north and south highway. Both roads were the ordinary county roads. There were no stop signs at the intersection. The exact width of the two roads does not appear in the record. However, it is a matter of common knowledge that county roads are sixty-six feet wide.
Along the south side of the east and west highway and up to the intersection corner there was a wire fence. Just south of this fence was a field of corn which came up close to the corner post at the southeast corner of the intersection. This field of corn extended to the south on the east side of the north and south road. Weeds and bushes were also along said fence line, and in the corner. The corn was tasseled out on July 29, 1947, and completely obscured and obstructed the south view of the north and south highway to those approaching from the east and also the east view of those approaching from the south. Appellee admits that he could not see the north and south road south of the intersection, consequently, as he approached, to him it had a 'blind' corner. It was a clear day, very dry, and good visibility. Appellee was alone in his car.
To show the intersection and the general location there are set forth two exhibits. Exhibit 3 was taken east of the intersection looking west.
It will be observed that the tall post shown at the southeast corner of the intersection and the post shown on exhibit 8, are one and the same. Exhibit 8 shows that the corn, etc., came up to the corner.
The views of the exhibits are highly important as they show physical facts which existed at the time of the collision. All views were taken shortly after the collision.
We think that the attitude and demeanor of appellee as he drove over the highway, and as he approached the intersection where the collision took place, are best shown by quoting from his testimony as given on direct examination. After testifying to some preliminary matters he said:
'The traffic on the Airport Walford Road immediately prior to the accident on July 29, 1947, was very light, since I didn't see any other cars during the distance I drove. There was no obstruction to my view ahead as I approached this intersection. There was obstructions to my view of the intersecting road from the south as I approached the intersection....
To continue reading
Request your trial