Blessing v. Welding

• Decision Date: 20 June 1939
• Docket Number: 44755.
• Citation: 286 N.W. 436,226 Iowa 1178
• Parties: BLESSING v. WELDING et al.
• Court: Iowa Supreme Court

286 N.W. 436

226 Iowa 1178

BLESSING v. WELDING et al.

No. 44755.

Supreme Court of Iowa.

June 20, 1939

Appeal from Municipal Court, of Sioux City; Berry Sisk, Judge.

Action claiming damages for injuries sustained in automobile collision alleged to have been caused by obstruction of stop sign. The court dismissed the petition and plaintiff appeals.

Reversed and remanded.

MITCHELL, C. J., and OLIVER, J., dissenting.

Lester C. Davidson and Robert J. O'Connor, both of Sioux City for appellant.

Eskil M. Nelson and Milchrist & Marshall, all of Sioux City, for appellees.

HALE Justice.

Plaintiff, the wife of the driver of one of the automobiles involved in the collision, asks judgment against the defendants, claiming in her petition that on October 12, 1938, while a passenger in her husband's car being driven east on Correctionville road in Sioux City, she sustained injuries by reason of a collision with a car driven by one Elder Beckstrom from the north toward the south at the intersection of two highways. At the northwest corner of the intersection there is a stop sign on the north-and-south road. The defendants' truck was parked on the parking, or sidewalk, at the northwest corner of the intersection, immediately north of the stop sign, so that more than half of the truck was west of the west curb of Fairmont street (the intersecting street) so as to obscure such stop sign from the vision of drivers of cars coming from the north. Beckstrom, without stopping, proceeded into the intersection and struck the car in which plaintiff was a passenger, damaging the car and injuring the plaintiff.

Plaintiff sets out various grounds of negligence on the part of the defendants, among them alleging negligence in parking said truck so as to obscure the view from the north, and parking on the sidewalk instead of in the street; violation of section 383 of chapter 134 of the Acts of the Forty-Seventh General Assembly, and violation of the city ordinance of Sioux City; permitting said truck to remain parked in a position where it constituted a dangerous menace to traffic on Fairmont street and Correctionville road. This is followed in the petition by the usual allegations in regard to contributory negligence; and claim for damages, the amount of which is changed by an amendment.

To the petition and amendment of plaintiff defendants interposed a demurrer, the grounds of which were that the alleged acts or omissions of defendants are wholly irrelevant and immaterial, and that the alleged negligence of defendants could not have been the proximate cause of plaintiff's injuries or damages as a matter of law.

Plaintiff then filed an amended and substituted petition containing the same allegations as in the original petition, with some slight change in the wording; and amplifying such allegations, alleging more specifically lack of knowledge by Beckstrom and knowledge of the intersection by the defendants, with some other unimportant allegations. The new petition, it is earnestly insisted by defendants, contains merely more extended charges of negligence, or improper matters or conclusions. There are no new issues pleaded, or new grounds of negligence.

The order sustaining defendants' motion to strike was based solely on the ground that the amendment was merely a restatement of matters in the original petition. Plaintiff then elected to stand upon the pleadings, and the cause of action was dismissed. To all rulings of the court proper exceptions were preserved, and from such rulings plaintiff appeals.

I.

By merely pleading a restatement of the original allegations of the petition plaintiff did not waive her exception to the ruling on the demurrer. This was not such a pleading over as would amount to a waiver. Having duly excepted and permitted judgment to be entered against her, she may properly urge on appeal her objection to such order. If it affirmatively appears that the unsuccessful party did not waive the error in the ruling (on the demurrer), this is sufficient. Geiser Mfg. Co. v. Krogman, 111 Iowa 503, 82 N.W. 938; Watkins v. Railway Co., 123 Iowa 390, 98 N.W. 910; Wisner v. Nichols, 165 Iowa 15, 143 N.W. 1020, and cases therein cited and reviewed. See also, Back v. Back, 148 Iowa 223, 125 N.W. 1009, L.R.A.1916C, 752, Ann.Cas.1912B, 1025; Hanson v. Carl, 201 Iowa 521, 207 N.W. 579.

Was the court correct in sustaining the demurrer?

Subsection 6, section 383, of chapter 134, Acts of the Forty-Seventh General Assembly, is as follows:

" No person shall stop, stand, or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with the direction of a police officer or traffic-control device, at any of the following places:

* * *

6. Within ten feet upon the approach to any flashing beacon, stop sign, or traffic-control signal located at the side of a roadway; * * *."

The ordinance of Sioux City referred to is as follows:

" No person shall stop, stand, or park a vehicle * * * in any of the following particulars: * * *

(6) Within ten feet upon the approach of any * * * stop sign * * * located at the side of a roadway."

The defendants having demurred to the petition, the negligence of the defendants is thereby admitted, and the question before the court is whether or not the municipal court could, as a matter of law, hold that such negligence was not the proximate cause of plaintiff's injury.

II.

The question of proximate cause has been before this court in almost every form. It does not appear, however, that the exact question submitted to us in this proceeding has ever been passed upon by the court. The effect of an intervening force has caused some of the most difficult problems in the past.

We have here a negligent act which it is claimed resulted in injury through the intervention of another force. Ordinarily it is said that where a second force intervenes, liability depends upon whether or not that second force may be anticipated to be the natural and probable consequence of the negligent act of the first party. The cases in Iowa where this question has come up are so many in number, and the conditions vary to such an extent, that to attempt to analyze all of them would be of little value. Among the later cases on this question is Judd v. Rudolph, 207 Iowa 113, 222 N.W. 416, 62 A.L.R. 1174.This was a case involving three cars, and, in substance, it holds that if the negligence of the operator of an automobile proximately operates to produce a damage, the operator is liable therefor even though another concurring cause operates at the same time to bring about such damage, and in such case it is quite immaterial whether the concurring cause was or was not negligently put into operation. Citing Rice v. Whitley, 115 Iowa 748, 87 N.W. 694, 695, wherein it is stated: " If defendants' original and continuing wrong operated proximately in producing the damage, they are liable, even though there was another concurring cause operating at the same time to bring about the result." Citing Gould v. Schermer, 101 Iowa 582, 70 N.W. 697.

See Judd v. Rudolph, supra, with cases cited.

In the case of Fishburn v. Railway Co., 127 Iowa 483, 103 N.W. 481, 484, the court says: " The mere fact that another cause intervened between defendants' negligence and plaintiff's injury is not enough to relieve the former from liability if the intervening act was of such nature that its happening was to have been apprehended. Stated otherwise, the intervening cause will not relieve the original negligence of its actionable quality if the occurrence of the former might have been anticipated."

See also Fitzgerald v. Des Moines City R. Co., 201 Iowa 1302, 207 N.W. 602; Godbey v. Grinnell E. & H. Co., 190 Iowa 1068, 181 N.W. 498; Buehner v. Creamery Package Mfg. Co., 124 Iowa 445, 100 N.W. 345, 104 Am.St.Rep. 354; Burk v. Creamery Pkg. Mfg. Co., 126 Iowa 730, 102 N.W. 793, 106 Am.St.Rep. 377; Ives v. Welden, 114 Iowa 476, 87 N.W. 408, 54 L.R.A. 854, 89 Am.St.Rep. 379, all of which cases are cited by the plaintiff.

We believe the rule to be that where the act of a third party, even if it is negligent, intervenes between the original negligence of defendant and the injury, there is proximate cause if, under the circumstances, an ordinarily prudent man could or should have anticipated that such intervening act, or a similar intervening act, would occur.

The case of McClure v. Richard, Iowa, 282 N.W. 312, is not in conflict with this rule. In that case there was a distinct intervening cause. The court properly held that the negligence of the defendant did not concur with the act of the other driver, that they were separate and independent acts, and that the act...