Cavanaugh v. Jepson

• Citation: 167 N.W.2d 616
• Decision Date: 06 May 1969
• Docket Number: No. 53469,53469
• Parties: Leonard CAVANAUGH, Appellant, v. Marvin JEPSON, Appellee.
• Court: United States State Supreme Court of Iowa

Page 616

167 N.W.2d 616

Leonard CAVANAUGH, Appellant, v. Marvin JEPSON, Appellee.

No. 53469.

Supreme Court of Iowa.

May 6, 1969.

Thomas L. McCullough, Sac City, and Paul J. Yaneff, Sioux City, for appellant.

John W. Gleysteen and William E. Kunze, Sioux City, for appellee.

LeGrand, Justice.

This is an action for personal injuries arising out of an automobile accident which occurred on a gravel road near Anthon, Iowa, on September 24, 1965. Plaintiff appeals from the trial court's refusal to grant him a new trial following a jury verdict for defendant.

Plaintiff claims the trial court erred as follows:

(1) In refusing to submit plaintiff's allegation of negligence based upon a violation of section 321.288, Code of Iowa;

(2) In handling the question of contributory negligence as it arose throughout the trial; and

(3) In giving an instruction on unavoidable accident.

We find no merit in the first two assignments but hold plaintiff is entitled to a new trial for reversible error by the trial court in instructing the jury on unavoidable or inevitable accident.

Because the same problems will undoubtedly confront the court on re-trial, we consider and discuss all issues before us.

The accident upon which this action is based occurred during daylight hours under ideal weather and road conditions. Plaintiff, a veterinarian, was driving his pickup truck south on the gravel road. He had been following a gasoline truck for three-tenths of a mile before reaching the place of the accident. Both vehicles were proceeding at a speed of approximately 35 M.P.H., and plaintiff was maintaining a distance of 50 to 75 feet from the rear end of the gasoline truck. He testified he 'had a feeling the (gasoline truck) was going to turn into the Shever place.' This is precisely what happened.

Plaintiff testified that when the truck turned into the Shever drive he was still 50 to 75 feet behind it and was then traveling about five miles per hour. When the gasoline truck was 60 feet into the farm lane, and when plaintiff was directly opposite this lane, he was struck from the rear by defendant's car.

Plaintiff testified he did not know defendant was approaching him from the rear. He did not see him at any time. He was 'watching the gas truck and nothing else.' His first knowledge of the presence of defendant's car was at the time of the impact itself, which came as a 'terrible shock.'

Defendant testified he was driving south at a speed of between 50 and 60 M.P.H. He approached the crest of a hill some 300 to 400 feet north of the point of impact and then saw both plaintiff's car and the gasoline truck preceding it. He took his foot off the accelerator but did nothing else to reduce his speed. Plaintiff's vehicle remained in his line of vision at all times from the moment he first saw it until the accident. He knew, too, plaintiff was following the gas truck. Defendant stated he was driving faster than plaintiff and was quickly overtaking him. Yet he did not apply his brakes until, as he says, he knew he was going to hit plaintiff's truck. He asserts plaintiff's car was at a complete stop when the accident occurred. Plaintiff contends he was still moving but admits it was at a very slow rate of speed.

There is no claim in the pleadings or the evidence that the driver of the gasoline truck was negligent or that his right turn into the Shever lane was made in an improper manner. Plaintiff's theory of the case is that defendant was negligent while defendant lays the blame on plaintiff. No other cause is offered by either.

I. Plaintiff first complains because the trial court refused to submit for the jury's consideration the specification charging defendant was negligent as follows:

'(e) In failing to reduce the speed of the motor vehicle when approaching a hill and steep descent, as provided in section 321.288, Code of Iowa.'

This allegation is not in the precise language of the statute. However, it is clear plaintiff was entitled to have this charge submitted to the jury only if there was evidence defendant was at the time 'approaching and traversing * * * a steep descent.' This is the only portion of section 321.288 having any possible application here.

The trial court withdrew this ground of negligence, finding the record did not support the allegation. We agree with the trial court. Whether a specification of negligence should be submitted depends, of course, upon the evidence which supports it. Giving the testimony the interpretation most favorable to plaintiff, the record fairly shows the nearest hill crested some 350 feet north of the place of the accident. From that point on, there was only a 'slight downgrade.' This is not only the import of plaintiff's own testimony, but also that of his witness, Maurice Shever, in front of whose farm the accident occurred. The trial court found from the testimony and the photographic exhibits of the scene there was no 'steep descent' here. Under the record we hold the refusal to submit this issue was a proper exercise of the trial court's discretion. Gaskill v. Gahman, 255 Iowa 891, 895, 124 N.W.2d 533, 535, and citations.

II. Most of plaintiff's complaints are concerned with the question of contributory negligence, which was raised as an affirmative defense in defendant's answer.

Prior to the 1965 enactment of what is now section 619.17, Code of Iowa, a plaintiff seeking recovery for the alleged negligence of another was obliged to plead and prove his own conduct did not negligently contribute 'in any manner or in any degree' to his injury or damage. Section 619.17 now provides a defendant seeking to rely upon plaintiff's negligence must assert that negligence by way of affirmative defense and prove it was a proximate cause of the damage for which plaintiff seeks to recover. As we pointed out in Matuska v. Bryant, Iowa, 150 N.W.2d 716, 723, the legislature could hardly have improved on the clarity of this section. It sets forth in succinct and unmistakable terms how the defense of contributory negligence is to be raised and what must be proved to bar recovery.

We fail to recognize all the bogeymen plaintiff professes to see in section 619.17, but we nevertheless feel obliged to consider his numerous scoldings about the trial court's handling of this matter throughout the trial.

He first objects to defendant's answer, which asserted 'plaintiff was guilty of negligence which contributed to his own injuries and damages, if any, and which was a proximate cause of the accident and that the defendant was free from any negligence.' Plaintiff insists this did not properly raise the issue of plaintiff's negligence as now required by section 619.17.

It is apparent defendant could not quite bring himself to accept the clear terms of the statute by simply alleging plaintiff's negligence and that it was a proximate cause of the accident. See Matuska v. Bryant, supra, at page 724 of 150 N.W.2d. The assertion that such negligence 'contributed' to the accident smacks of the old rule prior to the enactment of section 619.17; and in pleading this defense there is simply no reason to recite defendant's freedom from negligence.

However, defendant's allegations included what is required under section 619.17--the claim that plaintiff was guilty of negligence which was a proximate cause of the accident. We find no merit in the argument this pleading is fatally bad because it tacked on other statements which were mere surplusage.

Plaintiff devotes considerable time and energy in attempting to persuade us, as he had attempted to persuade the trial court, that the term 'contributory negligence' itself is no longer permissible and that the very use of the term is error. We cannot agree.

Historically the term 'contributory negligence' was used simply to distinguish negligence on the part of the person seeking to recover damages from that of the person against whom a claim was made. In some states the burde is upon the plaintiff to show his freedom from contributory negligence. In others it is the defendant's duty to prove negligence on the part of the plaintiff. But no matter whose burden it is and no matter what must be proven, negligence of a plaintiff sufficient to bar his recovery is properly called contributory negligence. 65A C.J.S. Negligence § 116, pages 19, 22, 23; 38 Am.Jur., Negligence, section 174, page 848.

As illustrative of cases referring to this affirmative defense as contributory negligence under rules similar to our present statute, although not in all cases identical to it, see Ripp v. Riesland, 176 Neb. 233, 125 N.W.2d 699, 703; Cowan v. Dean, 81 S.D. 486, 137 N.W.2d 337, 341; Courtney v. Traders & General Insurance Co., La.App., 198 So.2d 529, 531; Hampy v. Midwest Hanger Co., Mo.App., 355 S.W.2d 415, 418; Sztaba v. Great Northern Railway Co., 147 Mont. 185, 411 P.2d 379, 390; Maser v. Klein, 224 Or. 300, 356 P.2d 151, 153; Warner v. Liimatainen, 153 Conn. 163, 215 A.2d 406, 408; Matt Skorey Packard Co. v. Canino, 142 Colo. 411, 350 P.2d 1069, 1071; General Portland Cement Co. v. Walker, C.C.A. 5, 293 F.2d 294, 298.

Although the matter now urged by plaintiff has not been heretofore presented to us, we have several times referred to the affirmative defense under section 619.17 as contributory negligence. Matuska v. Bryant, supra, 150 N.W.2d at page 724; Bauman v. City of Waverly, Iowa, 164 N.W.2d 840, 845. We mention, too, although not as controlling, that the Uniform Jury Instruction adopted by the Iowa State Bar Association designates such a defense as contributory negligence and that section 619.17 itself bears that title.

It was not error to call the 'new' defense by its old name. The burden of proof has shifted, and so has the quantum, but it is still the defense of contributory negligence.

Plaintiff raises still another objection on this issue. Defendant plead plaintiff's negligence in general terms. He did not specify the particulars in which plaintiff was...