Bonnett v. Oertwig

• Decision Date: 06 June 1944
• Docket Number: 46407.
• Citation: 14 N.W.2d 739,234 Iowa 864
• Parties: BONNETT v. OERTWIG et al.
• Court: Iowa Supreme Court

14 N.W.2d 739

234 Iowa 864

BONNETT v. OERTWIG et al.

No. 46407.

Supreme Court of Iowa

June 6, 1944

Hoffman & Carter, of Leon, and O. M. Slaymaker, R. E. Killmar and D. D. Slaymaker, all of Osceola, for appellant.

R B. Hawkins, of Leon, for appellees.

GARFIELD, Justice.

This is a companion case to Semler v. Oertwig, Iowa, 12 N.W.2d 265. Plaintiff was a passenger in the Semler automobile which was struck from the rear by the truck owned by defendant Williams and driven by defendant Oertwig. Testimony for plaintiff is that the automobile, with a flat tire, was moving at 15 to 20 miles an hour. Testimony for defendants indicates it was stopped upon the highway. There is also a dispute as to whether the Semler taillight was burning. It was in the night-time and visibility was not good. Oertwig came from the rear, failed to see the car in time to avoid striking it, but did turn somewhat to the left. The damage to the Semler car was mainly to the left side of its rear end. Upon this appeal the only errors assigned by plaintiff are based on the court's failure to submit certain specifications of negligence.

I. Plaintiff's petition alleges Oertwig was negligent in failing to keep a proper lookout on the road ahead and failing to discover the Semler automobile in time to avoid colliding with it. In its instructions the court stated this specification in this way-that Oertwig was negligent in failing to maintain a proper lookout for other persons or motor vehicles on the highway. This is the basis for plaintiff's first complaint. No complaint is here made of the instruction bearing upon the charge as submitted, which states in substance, among other matters, that it was Oertwig's duty to use reasonable care and caution to keep a lookout ahead to discover other persons or objects.

We find no reversible error here. The court was not required to submit the charge of negligence in the exact language of the pleader. Apparently the wording of this specification was changed in the interest of brevity and better understanding and to enable the court to instruct more readily on the applicable law. Oertwig's duty was not an absolute one to discover the Semler car. He was required only to use reasonable care under the circumstances to maintain a lookout to discover other persons or vehicles on the highway. Fry v Smith, 217 Iowa 1295, 1300, 253 N.W. 147, 149; Gregory v Suhr, 221 Iowa 1283, 268 N.W. 14, and citations. That specifications of negligence may be thus paraphrased see Smith v. Pine, Iowa, 12 N.W.2d 236, 241, and citations.

II. Plaintiff's petition alleges Oertwig was negligent in driving at an excessive and dangerous speed and in failing to stop within the assured clear distance ahead. In its instructions the court combined these two specifications and stated them in this way,-that Oertwig failed to operate the truck at a careful and prudent speed, not greater nor less than was reasonable and proper, having due regard to the traffic, surface and width of the highway and other conditions then existing, and failed to drive at a speed which would permit him to stop within the assured clear distance ahead. Plaintiff contends his allegation that Oertwig was negligent in failing to stop within the assured clear distance was not thereby submitted to the jury.

Again, we find no reversible error. The language used by the court is substantially that of section 5023.01, Code 1939. These two pleaded charges of negligence, each relating to speed, rendered this statute applicable. See Janes v. Roach, 228 Iowa 129, 136, 290 N.W. 87; Jarvis v. Stone, 216 Iowa 27, 32, 247 N.W. 393. No claim is here made that the jury were not properly instructed on the law governing these specifications as pleaded. The principal change made by the court in the pleaded specification regarding the assured clear distance rule lies in the statement that Oertwig failed to drive at a speed which would permit him to stop within such distance. This conforms substantially to the language of section 5023.01. We have pointed out that the statute is essentially a speed regulation rather than one requiring a motorist to stop. Pierce v. Dencker, 229 Iowa 479, 484, 294 N.W. 781; Jordan v. Schantz, 220 Iowa 1251, 1255, 264 N.W. 259. See 24 Iowa L.Rev. 128, 133. See also on this assignment of error cases cited in Division I.

III. Plaintiff complains of the court's failure to submit a charge made in the petition that Oertwig was negligent in not driving the truck in a careful and prudent manner. This is one of eight allegations of negligence made in the petition. The other seven allege specific negligence. This is an allegation of general negligence. We think plaintiff cannot complain of the failure to submit this general charge. There was no evidence of any negligence on Oertwig's part which proximately caused the collision other than the matters of lookout and speed. As stated, both those matters were covered by specifications of negligence which were submitted to the jury. Of course, Oertwig could not be found negligent except as shown by the evidence.

IV. Finally, plaintiff complains of the court's failure to submit these two allegations of the petition-that Oertwig was negligent in failing to turn out a safe distance to the left in passing the Semler car and also in not turning to the left when approaching the Semler car from the rear. These allegations were evidently intended to charge a violation of that part of Code, section 5024.03, which provides: "The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle."

Plaintiff was not entitled to have both of these charges of negligence submitted. They both express substantially the same thought and apparently refer to the same...