Beezley v. Kleinholtz, 49827

• Decision Date: 15 December 1959
• Docket Number: No. 49827,49827
• Citation: 251 Iowa 133,100 N.W.2d 105
• Parties: Donald D. BEEZLEY, Appellee, v. Myron W. KLEINHOLTZ, Appellant.
• Court: Iowa Supreme Court

Page 105

100 N.W.2d 105

251 Iowa 133

Donald D. BEEZLEY, Appellee, v. Myron W. KLEINHOLTZ, Appellant.

No. 49827.

Supreme Court of Iowa.

Dec. 15, 1959.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellant.

Robert M. Dippel and Noran L. Davis, Council Bluffs, for appellee.

THORNTON, Justice.

This is an intersection case. The collision occurred about 3:00 p. m., July 10, 1954, at the intersection of Ave. G and 16th St. in Council Bluffs on a clear day. Plaintiff, riding alone was driving his 1952 Oldsmobile east on Ave. G, defendant with a girl, then 12 years old, riding with him was driving a 1950 Ford convertible north on 16th St. Defendant had the directional right of way. The cars collided in the southeast quadrant of the intersection and came to rest in the northeast quadrant. Ave. G was paved with asphalt and 33 feet wide from curb to curb; 16th St. was dirt or oil surfaced and 26 feet wide from curb to curb. This action was started in August of 1955 but delayed for trial until January, 1959, due to defendant's service in the armed forces of the United States. Defendant filed a counterclaim. The trial jury returned a verdict of $5,928.34 for plaintiff. Defendant's motions for a directed verdict, for a new trial, and for judgment notwithstanding the verdict were overruled and he appeals.

I. Defendant contends he is entitled to a reversal because plaintiff has not proved his freedom from contributory negligence and plaintiff is guilty of contributory negligence as a matter of law as to lookout, control and failure to yield the right of way.

Plaintiff has the burden of making an affirmative showing of his freedom from contributory negligence, that is, such negligence on his part as contributes in any way or in any degree directly to his damage and injury. This is a substantial part of his cause of action. His proof may be circumstantial as well as direct. Olson v. Truax, 250 Iowa ----, 97 N.W.2d 900, 905; Paulsen v. Haker, 250 Iowa ----, 95 N.W.2d 47, 54, 55; Peterschmidt v. Menke, 249 Iowa 859, 89 N.W.2d 152, 154; Jacobson v. Aldrich, 246 Iowa 1160, 68 N.W.2d 733; Gregory v. Woodworth, 93 Iowa 246, 248, 61 N.W. 962, 963; Rabe v. Sommerbeck, 94 Iowa 656, 658, 63 N.W. 458; and Fort Dodge Hotel Co. of Fort Dodge v. Bartelt, 8 Cir., 119 F.2d 253, 258. To determine the question presented here it is our duty to examine the evidence, both direct and circumstantial, in the light most favorable to plaintiff and give him the benefit of every reasonable inference therefrom.

The duties of plaintiff and defendant at the intersection are governed by the following provisions of the 1954 Code, I.C.A. Section 321.319 provides, where two vehicles are approaching so their paths will intersect and there is danger of collision, the vehicle approaching on the right shall have the right of way. Section 321.288 provides the operator of a motor vehicle shall have the same under control and reduce the speed to a reasonable and proper rate when approaching and traversing an intersection. Section 321.285 provides, a person driving a motor vehicle shall drive at a careful and prudent speed not greater than nor less than is reasonable and proper having due regard to the traffic, surface and width of the highway and of any other condition then existing, such driver has the right to assume others using the highway will observe the law; and provides 25 m. p. h. as the speed limit in a residential district, here applicable. Section 321.297 provides an operator of a motor vehicle in cities and towns shall at all times travel on the right-hand side of the center of the street. Street or highway are synonymous. Section 321.1, paragraph 48. And in addition thereto each has the common law duty to exercise reasonable care and maintain a proper lookout.

The evidence shows plaintiff was a man 32 years old at the time of the accident and that he had driven over the intersection every day going to and from work for well over a year. Plaintiff testifies he was traveling east on Ave. G, in the right-hand lane one car width from the south curb at a speed of 25 m. p. h., when he was 20 to 25 feet west of the west curbline of 16th St. he looked to his right, south, and saw no one coming. At that point he could see not over 25 to 30 feet to the south. His vision was obscured by six-feet-high weeds that reached to the south to the end of the lot. He then slackened his speed, looked to his left, saw no one coming, looked right again, and he testifies 'At that instant Mr. Kleinholtz' car was on top of me.'

'I looked and saw the car and it was approaching me and I instinctively went for my brakes and swerved to the left to avoid the collision, but it happened anyway. He struck me on my right front and pushed me to the other side of the street. He kind of pancaked, whipped around to the side of my car and it showed there.'

'He was coming at me, my front, and it appeared like he was trying to turn to the right, applying his brakes and going right, but he struck me and knocked me * * *.'

The collision occurred in the southeast quadrant of the intersection and the cars came to rest in the northeast quadrant. There were skid marks behind defendant's car for 30 to 40 feet and testimony defendant was approaching the intersection at 40 and 50 m. p. h.

It was plaintiff's duty to yield the right of way to traffic on his right, 'when their paths will intersect and there is danger of collision.' However, if he took reasonable steps under the circumstances to determine whether there was danger of collision and it did not so appear he had the right to proceed thru the intersection. And such steps would be evidence of ordinary care on his part and evidence of absence of contributory negligence. This statement, 'It was plaintiff's duty to exercise reasonable care to keep a lookout for vehicles approaching the intersection from his right and if there were such to be prepared to yield the right of way.', is in each of the following cases: Jacobson v. Aldrich, 246 Iowa 1160, 1170, 68 N.W.2d 733, 739; Peterschmidt v. Menke, 249 Iowa 859, 865, 89 N.W.2d 152, 156; and Olson v. Truax, 250 Iowa ----, 97 N.W.2d 900, 905.

At the time plaintiff looked to his right, south, the second time it was hopelessly too late to yield the right of way or avoid the collision. From the testimony he was in the intersection, he does not say where, defendant was right on him. Reliance cannot be placed upon this second look as to doing anything relative to yielding the right of way. It is not evidence of due care on his part. Therefore it is necessary to look to other conduct of plaintiff and the circumstances. The only other time plaintiff looked to his right was at a point 20 to 25 feet from the intersection and then he could only see 30 feet south on 16th St. from the south curbline of Ave. G. At this point he was traveling 25 m. p. h. He says he slackened his speed and was traveling 20 to 22 m. p. h. at the time of the impact. Six-feet-high weeds prevented plaintiff from seeing further south at this point. He was well acquainted with the intersection. He does not testify how far east the high weeds extended but does say they reached south to the alley. No other witness testifies to the weeds. He does not testify he then thought it was safe to go thru the intersection. At this point his observation disclosed only that there was no traffic within 30 feet of the intersection. Traffic 31 feet from the intersection at a speed of 25 m. p. h. in one second would travel 36.66 feet and the bumper of such an automobile would be right on the lane of travel of plaintiff, one car width from the curb. Plaintiff, if he maintained his speed of 25 m. p. h., figuring he was 20 feet west of the west curbline of 16th St. at his position behind the wheel, would in one second travel 20 feet to the curbline, one-half the width of 16th St. or 13 feet, and 3.66 feet into the right-hand or east lane of 16th St. We assume plaintiff's 1952 Oldsmobile was approximately 16 feet long and six feet wide. This is a fair assumption from the pictures placed in evidence. Plaintiff, in the driver's seat would have at least eight feet of the car behind him. For plaintiff's car to clear the east or right-hand lane, figuring such lane at six feet, he would have to travel 47 feet, 20 feet to the curbline, 13 feet over the west half of 16th St., six feet over the right-hand lane and eight feet from the driver's seat to the rear of his car. This would take him one and one-fourth second. In the same length of time a northbound car traveling 25 m. p. h., 31 feet south of the curb, just out of plaintiff's vision would be within one-half foot of the centerline of Ave. G. All measurements and distances used are those most favorable to plaintiff...