Carlson v. Meusberger

• Decision Date: 25 June 1925
• Docket Number: 36509
• Citation: 204 N.W. 432,200 Iowa 65
• Parties: ROLAND CARLSON, Appellee, v. ALBERT MEUSBERGER, Appellant
• Court: Iowa Supreme Court

204 N.W. 432

200 Iowa 65

ROLAND CARLSON, Appellee, v. ALBERT MEUSBERGER, Appellant

No. 36509

Supreme Court of Iowa, Des Moines

June 25, 1925

Appeal from Calhoun District Court.--M. E. HUTCHISON, Judge.

ACTION for damages resulting from an automobile collision. The plaintiff had a verdict; and from judgment thereon, defendant appeals.--Reversed and remanded.

Reversed and remanded.

Jacobs & McCaulley and E. C. Stevenson, for appellant.

Kelleher & Mitchell, for appellee.

VERMILION J. EVANS, STEVENS, ARTHUR, DE GRAFF, and ALBERT, JJ., concur.

OPINION

VERMILION, J.

The appellee sued to recover for personal injuries and damage to his automobile, received in a collision with a car driven by appellant. The collision occurred on the morning of September 9, 1923. Appellee, another young man, and two young ladies were riding in a Ford roadster, with the top up and the side curtains on. Appellee was seated on the left side, driving. One of the girls sat in the middle; and the other young man with the other girl on his lap, sat on the right side of the single seat. They had left Rockwell City between 7 and 8 o'clock in the morning, going west on a graveled road. About 9 miles west of Rockwell City, at a point where the road was crossed by a road running north and south, the car came into collision with a Ford coupe, driven by the appellant, and approaching the intersection from the south. The appellee was severely injured.

Error is assigned on the giving of certain instructions to the jury; but the chief contention is that the evidence failed to establish appellee's freedom from contributory negligence, and that the court should for that reason have sustained appellant's motion for a directed verdict, made at the close of appellee's evidence and repeated at the close of all the evidence. It is not seriously claimed that there was not sufficient evidence of negligence on the part of appellant to take the case to the jury and to sustain the verdict, so far as that question is concerned.

Both roads were graded, with ditches at the sides. Across the north and south road on either side of the east and west road there were culverts, with concrete headblocks or bulkheads at the ends. The intersection, the space between these headblocks, was about 31 or 32 feet north and south, and 28 feet east and west. The graveled part of the east and west road was about 25 or 26 feet wide. The road as it approached the intersection from the east was on an upgrade. The field to the southeast of the intersection was in corn, and fenced with wire along the roads. There was testimony that the fence was rounded somewhat at the corner, and that at the point there was a pile of rock, and in the vicinity a telephone pole and an electric line pole, and that tall weeds were growing at the corner. There was a sharp conflict in the testimony as to the point in the intersection of the two roads at which the collision occurred.

I. The court submitted to the jury the question whether appellee's view was obscured as he approached the intersection; and this is assigned as error.

The statute in force at the time, Chapter 275, Acts of the Thirty-eighth General Assembly, provided, in Section 25, as follows:

"Every motor vehicle shall be equipped with a suitable bell, horn, or other signaling device producing an abrupt sound sufficiently loud to serve as an adequate warning of danger, but no persons operating any motor vehicle shall make or cause to be made any unnecessary noise with such bell, horn, or signaling device, or use the same except as a warning of danger. * * * An adequate signaling device shall in all cases be sounded on approaching curves, tops of hills, and the intersecting highways in the country where the operator's view is obscured."

A view may be said to be obscured when it is not clear and distinct. Century Dictionary.

There was much testimony from witnesses for both parties tending to show that the view of one approaching from the east was obscured by the relative elevation of the roads, the standing corn, and to some extent by the other objects southeast of the intersection. The appellee testified:

"You can't see very much toward the south there on account of the corn. I couldn't see very much * * * I looked to the north first,--that's my right-hand side. I then looked to the south. I don't remember seeing any high weeds there. I can't remember seeing a big pile of rock. I remember the cornfield, because I saw it there. I think the corn came up close to the fence. I did not see the telephone pole there. I did not see the Meusberger car until I got within 15 or 20 feet of it."

One of the young women with him testified:

"This was an ordinary cornfield. The hill was just a small knoll. As we approached the crossing, we were going up hill. The crossing is higher than the road to the east. The top of the hill is at the intersection. I don't remember any other obstructions in the cornfield to the south."

The other young woman, who was sitting on the lap of another occupant of appellee's car, and facing the south, and whose line of vision, while slightly higher than appellee's, was more obstructed by the side curtains, testified:

"My head was up pretty high, about the level of the celluloid strips in the curtains. I could see through the celluloid by turning down my head. I turned my head down when I seen the car. The top of the celluloid was about an inch below the line of my eyes. I could see the road and the fences toward the south as we drove along, and a little beyond the fences. I could see the fences and the cornfield, and pasture lands on the south and the houses. There is rather an incline at the crossroads. I could see the cornfields, looking toward the south. * * * My attention was largely toward the south, and I was looking toward the south. I did not remember seeing the fence post at the southeast corner of that intersection. I did not see the rock pile. I did see the cornfield. It was rather tall. I did not see the weeds. I did not see the telephone pole at the corner. I could not see through that cornfield as I looked over into the other road."

There is some dispute as to the height of the corn.

The testimony of this witness is the most favorable to the contention that the view was not obscured, that is to be found in the record. Her line of vision was higher than that of appellee, the driver of the car; and the plain import of her testimony was that, even under such circumstances, her view was to some extent obstructed. The appellee testified that he could not see very much toward the south on account of the corn. A careful reading of the record leads us to the conviction that the testimony showed without conflict that the view of the road to the south of the driver of a car approaching from the east was obscured, within the meaning of the statute. The only conflict in the testimony on this point is as to the extent of the obscurity; but that it was sufficient to prevent a clear and distinct view is clearly shown by all the testimony.

The question of contributory negligence was the close question in the case. The verdict for appellee was a finding that he was not guilty of contributory negligence. This result, so far as the sounding of a warning signal was concerned, may have been reached by a finding, under the instruction in question, that the view was not obscured, and that, therefore, no signal was required. Such a finding would have no support in the evidence, and would relieve the jury from consideration of the very vital question whether the failure of appellee to give a signal of his approach had causal connection with the collision. The instruction was erroneous. The jury should have been told that appellee was required by statute to sound a signal of his approach to the intersection in question.

II. There is no testimony that the appellee sounded any warning signal as he approached the intersection; and it is chiefly upon this omission that the appellant bases the claim that appellee was guilty of contributory negligence.

It must be conceded that, if appellee's view of the road entering the intersection from the south was obscured, his failure to give a warning signal as he approached the intersection from the east was negligence. Hough v. Illinois Cent. R Co., 169 Iowa 224, 149 N.W. 885; Clark v. Weathers, 178 Iowa 97, 159 N.W. 585; Corning v. Maynard, 179 Iowa 1065, 162 N.W. 564; Girl v. United States R. Adm., 194 Iowa 1382, 189 N.W. 834. But the fact that his view was obscured, and that his failure to sound a signal of his approach, as required by the statute, was negligence, would not be conclusive upon the question of contributory negligence. There would remain the question whether such negligence had any causal relation to the collision. Appellee may have been guilty of negligence; but if that negligence did not contribute to cause the collision, it would not defeat his right to recover. It is not negligence merely, but contributory negligence on the part of a plaintiff, that defeats his recovery. The burden was upon appellee to establish that he was guilty of no negligence that contributed to the collision. His admitted failure to give the warning signal required by the statute constituted negligence, and had at least an apparent causal connection with the collision. But if there is in the record evidence from which the jury might have found that no such causal relation in fact existed, that the failure to give such signal did not in fact contribute to cause the collision, and that it would have occurred even though the signal required by the statute had been given, then it cannot be said, as a matter of law, that the failure to give the signal constituted contributory negligence. Schmid v....