Caudle v. Zenor

• Decision Date: 14 November 1933
• Docket Number: No. 41900.,41900.
• Citation: 251 N.W. 69,217 Iowa 77
• Parties: CAUDLE v. ZENOR et al.
• Court: Iowa Supreme Court

217 Iowa 77

251 N.W. 69

CAUDLE

v.ZENOR et al.

No. 41900.

Supreme Court of Iowa.

Nov. 14, 1933.

Appeal from Municipal Court of Des Moines; Ralph L. Powers, Judge.

This was an action for damages on account of the alleged negligent operation of a motor vehicle by the defendant. The case was submitted to the jury. The jury returned a verdict in favor of the plaintiff. Defendant appeals.

Affirmed.

Miller, Miller & Miller, of Des Moines, for appellants.

Paul G. James, Dring D. Needham, and David R. Miller, all of Des Moines, for appellee.

MITCHELL, Justice.

The appellee resides at Earlham, Iowa, and at the time of the accident he was twenty-four years of age and was an agent for the Standard Oil Company. On the evening of December 21, 1931, he drove his Chevrolet coach from Earlham to Adel, where he stopped at the Standard Oil Company station across from the courthouse, at about 9 o'clock. He then left Adel for Des Moines on United States Highway No. 6, which is the paved highway between Des Moines and Omaha. The appellant Zenor was driving a Durant sedan, owned by the appellant the O'Dea Motor Company, westwardly towards Adel on paved Highway No. 6. Both Zenor and Caudle were traveling alone. It had rained some that day and was foggy. The windshield wiper on the appellee's car was operating, and his headlights were turned on. He was driving east on the south side of the pavement from 20 to 25 miles per hour. He met and passed other cars. The appellant Zenor was driving west, and was driving with his lights off. According to his testimony, he could see better with his lights off than with them on. Appellant at the time of the accident was driving west, at the rate of about 35 miles per hour. According to appellant's testimony, he was on the north side of the pavement, but according to the testimony of the appellee, Zenor was traveling partly on the south side of the highway. The left front wheels of the cars crashed into each other.

At the end of the testimony the appellants moved the court to direct a verdict for the appellants. The court overruled the motion. The case was submitted to the jury and the jury returned a verdict in favor of the appellee in the amount of $350. And being dissatisfied with the ruling of the court upon the motion to direct and certain of the instructions given by the court, and the judgment of the jury, the appellants have appealed to this court.

It is interesting to note that the evidence in this case covers just fourteen pages in the abstract. Only two witnesses testified in regard to how the accident happened-the appellant Zenor and the appellee Caudle. The appellants have submitted a very able and elaborate brief and argument, consisting of ninety-nine pages, and in said argument have raised numerous questions.

[1] I. The first question which the appellants rely upon for reversal is that the appellee was guilty of negligence in driving his car on the evening of the accident at a speed of 20 to 25 miles an hour, due to the weather conditions which prevailed at that time. The record shows that on the evening of the accident there was a fog; that the appellee was driving his car at the rate of 20 to 25 miles an hour; that he could see a distance of 20 to 25 feet ahead of his car. The appellant Zenor testified that he could see a distance of 50 to 75 feet, and that a car approaching with lights turned on he could see a distance of a hundred yards or 300 feet. The appellant cites a great many cases, among them the case of Greenland v. City of Des Moines, 206 Iowa, 1298, 221 N. W. 953. In the Greenland Case the facts are entirely different than the facts in the case at bar. In the Greenland Case it was rainy and misty, and an obscure windshield interfered with visibility. In the case at bar it was not raining. In the Greenland Case the wiper on the windshield was not effective; in the case at bar it was working. In the Greenland Case the driver of the car could not see what was ahead of him. Even the appellant Zenor testifies in this case that he saw the appellee's car when it was between 50 and 75 feet from him, and he also testifies that he could see a car with headlights on it a distance of a hundred yards or 300 feet away. The fog on the evening of the accident was not a London fog, of which we read and hear so much. Under the record in this case, clearly, this court cannot say as a matter of law that the appellee was guilty of contributory negligence for driving his car on the public highway under the climatic conditions that existed at that time.

[2] II. The appellants complain because the appellee upon seeing the appellant Zenor's car approaching did not turn to the right, claiming that failure to do so is the best evidence of lack of control and improper lookout upon the part of the appellee. There is, of course, a conflict in the testimony; but according to the appellee he was driving between 20 and 25 miles per hour and was on his own side of the road. It was foggy. His windshield wiper was going, and he was naturally looking for lights and saw none, for the very good reason the appellant Zenor himself admits he was driving without any lights. According to the appellant Zenor's testimony, the appellee was driving at the rate of 35 miles per hour, without any lights. And so the two cars were approaching each other at a rate of speed of better than 75 feet a second. The appellee was confronted with an emergency of an unlighted car plunging directly at him, and it doesn't lie in the mouth of the appellant to complain that the appellee was unable to get out of his way.

[3] III. The appellant argues with a great deal of force that the appellee was guilty of contributory negligence as a matter of law with respect to the violation of the assured clear distance ahead statute. This court has held, in the case of Hoegh v. See, 246 N. W. 787, that the assured clear distance ahead statute applies to a situation where the cars were approaching each other from opposite directions. In the case of Jeck v. McDougall Construction Co., reported in 246 N. W. 595, 596, this court said:

“Appellant's contention, however, is that the deceased did not have his car under control and was driving the same at a...