Bunch v. Hanson

• Decision Date: 02 August 1960
• Docket Number: No. 49924,49924
• Parties: George Ray BUNCH, Appellant, v. James Clemant HANSON, Appellee.
• Court: Iowa Supreme Court

Page 581

104 N.W.2d 581

251 Iowa 1097

George Ray BUNCH, Appellant, v. James Clemant HANSON, Appellee.

No. 49924.

Supreme Court of Iowa.

Aug. 2, 1960.

Messer, Hamilton & Cahill and L. G. Klein, Iowa City, for appellant.

Hart, Shulman, Phelan, Tucker & Ivie, Iowa City for appellee.

GARFIELD, Justice.

This is a law action to recover for personal injuries sustained when defendant's automobile struck plaintiff while he was standing or walking at the side of his tractor-trailer on paved U.S. Highway 218 about 10 p. m. on February 1, 1956. Trial resulted in judgment on jury verdict for defendant from which plaintiff has appealed.

Plaintiff assigns error in the giving of jury instructions 10-A and 11-A on the asserted ground there was no basis in the evidence for them. Also in the failure to submit some specifications of negligence it is claimed had support in the evidence.

Plaintiff was making his first trip as extra driver for a truck company in Dallas, Texas, traveling south from Fairmont, Minnesota, to Memphis, Tennessee, with a gross weight of about 24 tons. The highway was covered with snow and ice and was slippery. It was snowing and visibility was not the best. When plaintiff was ascending a hill about 12 miles north of Iowa City the drive wheels of the truck started to spin and lost traction. Plaintiff testifies he pulled the truck to the right so about the right half of it was on the shoulder and the other half on the pavement. He did this partly to get traction and partly to get out of the way of traffic. He stopped the 'semi' in this position and with the aid of his spotlight located a sand barrel on the east (his left) side of the highway.

Plaintiff dug from the barrel the snow that covered the sand and with a shovel threw sand in front of the truck and under the drive wheels--about 50 feet roadway in all. About five minutes after the truck stopped he awakened the other driver who took the steering wheel. Plaintiff then got another shovel full of sand and threw it under the drive wheels. With still another shovel full for use if the drive wheels started to spin again, plaintiff testifies he faced the truck and walked at its side as it began to move. While all this was going on two northbound cars passed the truck. The third car going north was defendant's and it struck and seriously injured plaintiff.

Other evidence will be later referred to.

I. Instruction 10-A to the jury states it is the law that whenever a truck is stopped upon or immediately adjacent to the main traveled portion of a highway at night the driver shall cause a lighted fusee to be immediately placed on the roadway at the traffic side of such vehicle; if the jury finds plaintiff's truck was so stopped and he failed to cause a lighted fusee to be immediately placed on the roadway at the traffic side of such vehicle this would constitute negligence upon plaintiff's part and if the jury further finds such negligence, if any, contributed to his injury he would not be entitled to recover. The instruction defines 'immediately' in language not challenged and conclues with the statement that if plaintiff, following the stalling of the truck, failed to act with reasonable diligence under all the circumstances he would not be obeying the statute but if plaintiff, in failing to place a fusee upon the pavement immediately after his truck stopped, acted as an ordinarily careful and prudent person under the circumstances he would not be contributorily negligent in this respect.

Plaintiff objects to this instruction on two grounds. First, it is said the statute to which it refers is without application to the evidence. Second, that compliance with the statute would not have given defendant additional notice . Principal argument in support of the first ground is the assertion it is without serious dispute that at the time of the accident the truck was moving. In support of the second ground it is said the only purpose of placing fusees is to give notice of the presence of the truck and defendant had such knowledge anyway. There is no complaint against the form of the instruction or that it does not correctly state the law.

The statute to which instruction 10-A obviously refers is section 321.448, Code 1958, I.C.A. It provides that whenever a truck is stopped upon or immediately adjacent to the traveled portion of a highway outside a business or residence district at night the driver, in addition to the requirements of section 321.395 as to lights upon the vehicle, shall cause a lighted fusee to be immediately placed on the roadway at the traffic side of the vehicle and, as soon thereafter as possible, three lighted fusees, flares or red reflectors, one at least 100 feet in advance of the vehicle, one at least 100 feet to its rear, and the third upon the trafffic side of the vehicle. The statute also provides that if the vehicle is stopped within 300 feet of a curve or crest of a hill the flare or reflector in that direction shall be so placed as to afford ampel warning to other users of the highway.

Incidentally we may observe that if an instruction embodying section 321.448 is applicable to the evidence, 10-A is quite favorable to plaintiff. The instruction refers only to the statutory duty to place a lighted fusee at the traffic side of the vehicle and ignores the duty to place three other warning lights (fusees, flares or red reflectors) in front, rear and at the traffic side of the vehicle respectively. Further, there is substantial evidence the truck was stopped within 300 feet of a curve in the highway and the crest of a hill. Plaintiff himself testifies the truck was around 300 feet below the top of the hill and within 60 feet below a curve in the roadway. Other testimony places the truck even closer to the crest of the hill. Instruction 10-A also ignores the duty under such circumstances to place the forward flare or reflector so as to afford ampel warning to other highway users.

The instruction is also favorable to plaintiff in leaving it to the jury to determine whether the one fusee to which it refers was immediately placed on the roadway at the traffic side of the vehicle. Since the undisputed evidence is that no fusees or flares were placed, the jury could have been properly so informed.

Three witnesses testify as to whether the truck was moving or stationary when the accident occurred--plaintiff, defendant and Verwers, one of two other college students riding with defendant. Plaintiff says the truck was moving and moved about 20 feet between the time he 'spun out' and the time he was struck by defendant. This is part of the cross-examination of plaintiff:

'I don't imagine it was moving fast enough to move the speedometer on it.

'Q. Would you be able to tell it was moving if you were coming from the opposite direction? A. I don't know whether you could or not.

Q. It would be pretty hard to tell wouldn't it? A. I don't believe a man could tell whether it was moving.'

On his direct examination Verwers testifies five times the truck was stopped. On cross-examination he says he was under the impression it was stopped.

This is the direct examination of defendant upon this point:

'Q. Do you recall or what is your impression as to whether the truck was moving or standing still when you met and passed in the opposite direction? A. It is very difficult to tell. If it was moving, it was moving very slowly. It appeared to be standing still.

'Q. You had no impression of motion to it at all? A. No. * * *

'Q. You stated that when you saw this truck to your general impression it was not moving? A. That is true.

'Q. Did that impression change as you got closer to the truck and passed it? A. No.'

These are the pertinent excerpts from the cross-examination of defendant on this subject. (This also bears on the second groun of plaintiff's objection to instruction 10-A.)

'Q. As soon as you came around the curve where you could see down the hill you saw the headlights, recognized it was a truck, and that it was stopped? A. I did not recognize the truck was stopped at that time.

'Q. When did you recognize the truck was stopped? A. I don't believe I ever said I recognized that the truck was stopped. Apparently it was moving slowly or was stopped. * * * When you are approaching a vehicle it is extremely difficult to tell how fast it is moving or whether it is moving at all.

'Q. I am simply asking you to tell us whether you recognized that the truck was moving or stopped? A. Apparently it was moving slowly.

'Q. From the time you first saw the truck you now say it appeared to be moving slowly? A. There was no indication the truck was in trouble, if that is what you are trying to establish. * * * Apparently I thought the movements of the truck were normal.

'Q. So far as you could tell you want the jury to understand that after you came around the curve and saw the truck * * * you felt it was operating in a normal fashion? A. That it correct.'

Plaintiff admits the truck was stopped partly upon and partly immediately adjacent to the traveled portion of the highway for serveral minutes shortly before the accident and that no fusee or other warning light was placed upon or adjacent to the roadway at any time. Thus there is clear evidence of a violation of section 321.448 shortly before the accident. However, according to plaintiff the truck moved about 20 feet before he was struck and was moving slowly at the time, although he didn't think a northbound motorist could tell it was moving.

There is room for argument that even under plaintiff's testimony the truck was stopped, in the practical and realistic sense, at the time he was struck and the need for warning lights was clear. See as somewhat in point Olson v. Neubauer, 211 Minn. 218, 300 N.W. 613, 614-615. But such a holding is not necessary. There is substantial evidence the truck was not moving at the time of the accident. Verwers so testifies throughout. Defendant so...