Bletzer v. Wilson

• Citation: 276 N.W. 836,224 Iowa 884
• Decision Date: 14 December 1937
• Docket Number: 44095.
• Parties: BLETZER v. WILSON.
• Court: United States State Supreme Court of Iowa

276 N.W. 836

224 Iowa 884

BLETZER v. WILSON.

No. 44095.

Supreme Court of Iowa.

December 14, 1937

Appeal from District Court, Buena Vista County; F. C. Davidson Judge.

An action for personal injury and property damage claimed by reason of an automobile collision occurring at a highway intersection. There was a verdict for the defendant which was set aside by the court and a new trial granted. From such ruling the defendant appeals.

Affirmed.

Edson & Edson, of Storm Lake, and Putnam, Putnam, Fillmore & Putnam, of Des Moines, for appellant.

Whitney, Whitney & Stern, of Storm Lake, for appellee.

ANDERSON, Justice.

We will not go into detail in a statement or discussion of the facts in view of the necessity of a new trial. But briefly, the accident here involved occurred at an intersection of county roads in Buena Vista county, Iowa. One of these intersecting highways ran north and south and the other east and west. On the day the accident occurred, August 11, 1936, the plaintiff, appellee, Henry Bletzer, was proceeding west on the east and west highway, driving a Plymouth automobile approaching the intersection in question, and the defendant, appellant, was proceeding north driving a Ford car toward the intersection. There was a slight grade on the highway over which the defendant was passing approaching the intersection and there was a field of corn on his right which apparently obstructed his view of the road coming from the east until he reached a point some 70 or 80 feet from the intersection. And the same corn field also obstructed the plaintiff's view of the north and south road probably the same distance. A collision occurred near the center of the intersection and plaintiff claims resulting damages to his automobile and for personal injuries claimed to have been received in the collision. The plaintiff claims that the defendant was negligent: (1) In failing to drive his automobile at a careful and prudent speed and failing to keep his car under control. (2) In operating his car at such a speed and in such a manner as to drive the same suddenly into the car of the plaintiff. (3) In failing to keep a proper lookout. (4) In driving his car into the intersection disregarding the law giving to the car coming from his right the right of way. (5) In failing to apply his brakes and slacken his speed when he approached and drove into the intersection over which plaintiff had the right of way. (6) In failing to operate and have his car under such control that he could stop the same within the assured clear distance. The defendant filed a general denial as an answer to the plaintiff's petition. The court overruled a motion for a directed verdict for the defendant and submitted the case to the jury which returned a verdict for the defendant. A motion for new trial and exceptions to instructions were filed and sustained by the court and from such ruling the defendant has appealed.

The court in ruling on the motion for a new trial and exceptions to instructions used the following language: " The court finds that certain exceptions to the instructions should be sustained without attempting to point them out in this ruling, and the court sustains generally the motion for a new trial."

The defendant contends that his motion for a directed verdict should have been sustained and consequently there can be no error available to the plaintiff in the manner of instructing the jury; and also contends that the instructions complained of by the plaintiff were correct and not subject to the objections and exceptions interposed thereto by the plaintiff, appellee.

We do not think there is any merit in defendant's contention that his motion for an instructed verdict should have been sustained. The record clearly presents jury questions both as to the negligence of the defendant and as to the contributory negligence of the plaintiff. Our statute, § 5035, provides that where two vehicles are approaching on any public highway so that their paths will intersect and there is danger of a collision, " the vehicle approaching the other from the right shall have the right of way." As far as the record shows these intersecting highways were of equal classification and the board of supervisors of the county had taken no action designating the right of way at the intersection in question as being other than as provided by section 5035, and in these circumstances section 5035 governs the right of way at the intersection involved and, under this section, the plaintiff had the right of way over the intersection as against the defendant's car approaching from the plaintiff's left. The defendant testified that he approached the intersection at a speed of about 25 miles an hour and that he saw the plaintiff's car approaching some 30 or 35 feet before he reached the center of the intersection. The defendant also testified that at the speed he was driving he could have stopped his car within a distance of 25 or 30 feet; that he made no effort to stop his car, but accelerated its speed to about 35 miles an hour and came into collision with the plaintiff's car at or near the center of the intersection. He further testified that he did not know that the plaintiff had the right of way at the intersection in question and that he thought by accelerating the speed of his car he could clear the intersection and avoid the collision with the oncoming car of plaintiff which, he testified, was proceeding at a much greater speed than was the defendant.

The testimony clearly presented a jury question as to the negligence of the defendant and as to the contributory negligence of the plaintiff. The law, section 5035, clearly erects caution or slow signs at intersections of this kind as against the driver of an automobile who does not have the right of way at the crossing; and a violation of the section mentioned under ordinary circumstances constitutes negligence. Smithson v. Mommsen, Iowa, 276 N.W. 47, and cases cited.

The other question...