Brown v. Guiter

• Decision Date: 09 June 1964
• Docket Number: No. 51296,51296
• Citation: 128 N.W.2d 896,256 Iowa 671
• Parties: Glen R. BROWN, Appellee, v. Loren Frederick GUITER, Appellant.
• Court: Iowa Supreme Court

Page 896

128 N.W.2d 896

256 Iowa 671

Glen R. BROWN, Appellee, v. Loren Frederick GUITER, Appellant.

No. 51296.

Supreme Court of Iowa.

June 9, 1964.

Harold G. DeKay, Atlantic, for appellant.

Jones, Cambridge, Carl & Howard, Atlantic, for appellee.

THORNTON, Justice.

This is an intersection case. Plaintiff's action is to recover for injuries received in an intersection collision with defendant. The collision occurred at 9:45 a. m., January 2, 1960, at the intersection of Walnut and Eighth Streets in Atlantic. Plaintiff was driving south on Walnut Street, defendant was driving east on Eighth Street. Defendant was on plaintiff's right. The jury returned a verdict of $3,500 for plaintiff. Defendant's motion for judgment notwithstanding the verdict and for a new trial was overruled and he appeals.

Defendant-appellant's brief and argument does not conform to rule 344, Rules of Civil Procedure, 58 I.C.A. Particularly to rule 344(a)(4)(First) in that the brief and argument does not contain references to the pages and lines of the record to show fully the manner in which the error arose and the ruling of the trial court thereon. Attention is directed to this, not only because we would be justified in refusing to consider defendant's brief and argument, but because of the reason for the rule, to insure not only that the appellee but this court will know and understand the exact question the appellant wishes to present.

In this case it is apparent able counsel for plaintiff-appellee has in no way been misled by defendant-appellant's brief and argument, though it is evident extra time and work were involved in preparing to meet appellant's argument as presented. See Jerrel v. Hartford Fire Insurance Company, 251 Iowa 816, 817, 103 N.W.2d 83, 80 A.L.R.2d 1281; and Agans v. General Mills, Inc., 242 Iowa 978, 980, 48 N.W.2d 242.

I. Defendant contends the trial court was in error in striking his amendment to his answer filed two minutes before the trial was to start, and a double standard was applied when the court allowed plaintiff to amend to conform to the proof to include permanent injury.

The situation arose as follows: The action was started in August of 1961, after preliminary motions an answer was filed January 15, 1962, on February 3, 1962, defendant amended his answer to plead a release given by defendant on April 15, 1960, the pleading did not state to whom the release was given (defendant indicates this was a stenographic error), plaintiff's motion to strike, filed February 27, 1962, was sustained on April 5, 1963. On May 13, 1963, defendant, at 9:28 a. m., when the jury was called for 9:30 a. m., filed his amendment to his answer alleging the release was obtained by plaintiff from defendant. The stenographic error was corrected. As we read the trial court's ruling it denied leave to file the amendment as not being timely. Defendant does not contend he neglected to file the amendment through oversight or offer any excuse. It is apparent knowledge of the release was available to defendant since its date, April 15, 1960, he knew of the defect in his pleading, the omission of to whom the release was given, from the date of the filing of plaintiff's motion to strike, February 27, 1962. Though the record does not show it, we are fair in assuming defendant knew of the trial date for some time before May 13, 1963. During all this time he has done nothing to press this affirmative defense or take steps to see it would be properly presented. In fact, after the court sustained the motion to strike defendant's first amendment on April 5, 1963, defendant, if he intended to follow rules 85 and 86, Rules of Civil Procedure, should have filed the amendment within seven days.

Liberality in permitting amendments is the general rule, however, this liberality has limits. Determination of such limits is vested in the sound judicial discretion of trial courts. We do not interfere unless an abuse of discretion appears. In considering this question we take into consideration that trial courts are charged with the duty of conducting orderly and expeditious jury trials. Under the record made here we cannot hold the denial of this amendment was an abuse of discretion. Briney v. Tri-State Mutual Grain Dealers Fire Insurance Company, 254 Iowa 673, 679, 117 N.W.2d 889, 892; Russell v. Chicago, Rock Island and Pacific Railroad Company, 251 Iowa 839, 844-845, 102 N.W.2d 881, 885, and citations; and Mundy v. Olds, 254 Iowa 1095, 120 N.W.2d 469.

Defendant's claim a double standard was applied in allowing plaintiff to amend to conform to the proof to include permanent injury is answered in Russell v. Chicago, Rock Island and Pacific Railroad Company, 251 Iowa 839, 845, 102 N.W.2d 881, 885. There is no inconsistency in the two rulings. Defendant's amendment was an issuechanging defense of which he had ample knowledge. The record shows plaintiff's counsel was not advised of the permanent nature of plaintiff's injury until during the trial. Defendant was given immediate opportunity to, and did, have plaintiff examined by his physician. This physician did testify the injury was permanent.

II. Defendant contends a verdict should have been directed for him on the issue of plaintiff's contributory negligence and defendant's negligence. He presents these matters in different divisions. A review of the testimony of plaintiff and defendant will show a proper case for the jury was made on the issues of contributory negligence and speed, control and lookout. The evidence showed Walnut and Eighth Streets intersected at right angles. The width of the paved portion of Walnut Street north of Eighth Street was 40.5 feet. The paved portion of Eighth Street was 24.5 feet wide. The residential speed limit of 25 m. p. h. was applicable. The streets were icy, the weather clear. There were no traffic control or stop signs at the intersection. Plaintiff testified he was driving south on Walnut at 15 m. p. h. when he was 20 feet north of the curb line on Eighth Street he saw defendant's car at the first driveway west of the intersection. A plat in evidence shows this driveway is approximately 100 feet west of the intersection. Plaintiff did not again see defendant's car until he was three feet from the point of the collision btween the two cars in the southwest quadrant of the intersection. Plaintiff testified he formed no opinion as to the speed of defendant's car, and that when he saw defendant's car by the driveway, when he, plaintiff, was 20 feet north of the north curb line of Eighth Street, 'I just never dreamt of anything happening. I just never tried to stop. * * * there was no reason to stop. I was going and thought I had plenty of time.'

Defendant testified he was driving east in the south lane on Eighth Street at 15 to 17 m. p. h., that when he was 20 feet west of the west curb line of Walnut Street he saw plaintiff approximately 40 feet north of the north curb line of Eighth Street, 'plaintiff * * * was rapidly approaching.' Defendant also testified he applied his brakes when he first saw plaintiff and had him in view until the impact. His car did not slow down due to the ice.

There is a dispute as to the manner in which the cars came together. The jury could find either plaintiff's right-front fender and defendant's left-front fender was the first point of contact or that plaintiff's front first struck defendant's left-front door. Plaintiff's car came to rest facing north in the west lane of traffic in Walnut street with the back end about 20 feet north of the north curb line of Eighth Street. Defendant's car came to rest on the lawn of the home on the southeast corner of the intersection heading southeasterly. The front of defendant's car was within a few feet of the house.

From the foregoing it is apparent the issue of plaintiff's contributory negligence was for the jury. Defendant, on the right, had the directional right of way under the provisions of section 321.319, Code of Iowa, 1958, I.C.A. It provides, 'Where two vehicles are approaching * * * so that their paths will intersect and there is danger of collision, the vehicle * * * from the right shall have the right of way.'

It was plaintiff's duty to be prepared to yield the right of way. He had a right to assume others would obey the law. Beezley v. Kleinholtz, 251 Iowa 133, 137, 100 N.W.2d 105; and Culbertson v. Anderson, 251 Iowa 265, 268, 100 N.W.2d 633. As he viewed the situation he knew their paths would intersect, so our question is simply, was there danger of collision? Was his assumption he had plenty of time a reasonable one? Of course, he may testify to this state of mind. Wigmore's Code of Evidence, Art. 3, part. 599, page 133.

If plaintiff's testimony is believed, and the jury did, it could properly be found he observed a car 100 feet away from the intersection when he was 20 feet away, and approximately 35 feet from the point of intersection of the paths the cars were then following, as well as he thought he had plenty of time to cross the intersection. Certainly we cannot say as a matter of law his assumption he had plenty of time was unreasonable. Beezley v. Kleinholtz, 251 Iowa 133, 137, 100 N.W.2d 105; Culbertson v. Anderson, 251 Iowa 265, 268, 100 N.W.2d 633; Beardsley v. Hobbs, 239 Iowa 1332, 34 N.W.2d 916; and Falt v. Krug, 239 Iowa 766, 32 N.W.2d 781. Bearing on the duty of a driver having the statutory right of way, see Batliner v. Sallee, 254 Iowa 561, 565, 118 N.W.2d 552, quoting from Paulsen v. Haker, 250 Iowa 532, 537, 539, 95 N.W.2d 47.

III. Again if plaintiff's testimony is believed, it is apparent plaintiff was in plain view of defendant, defendant traveled more than twice as far as plaintiff, with plaintiff's speed at 15 m. p. h., the icy condition of the street, and defendant took no steps to avoid the collision. This and the fact defendant drove into or immediately in front of plaintiff's car are evidence of negligence in regard to speed,...