Central States Elec. Co. v. McVay

• Citation: 5 N.W.2d 817,232 Iowa 469
• Decision Date: 20 October 1942
• Docket Number: 46073.
• Parties: CENTRAL STATES ELECTRIC CO. v. McVAY.
• Court: United States State Supreme Court of Iowa

5 N.W.2d 817

232 Iowa 469

CENTRAL STATES ELECTRIC CO. v. McVAY.

No. 46073.

Supreme Court of Iowa

October 20, 1942

Johnston & Shinn, of Knoxville, for appellant.

Johnson & Johnson, of Knoxville, for appellee.

GARFIELD, Justice.

The trial court ruled that the driver of plaintiff's car was guilty of contributory negligence as a matter of law because he violated the assured clear distance statute, section 5023.01 Code, 1939, providing that no person shall drive a vehicle "at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead, such driver having the right to assume, however, that all persons using said highway will observe the law." The appeal challenges the propriety of this ruling.

On November 17, 1941, at about 5:40 p.m., plaintiff's employee Stover, was driving its 1941 Buick car west on paved primary highway 92. The sun had set at 4:52. When about seven miles east of Knoxville, the car collided with the rear of defendant's unlighted farm wagon filled with corn. The wagon was being pulled by a team tied to the rear of another corn wagon upon which defendant was riding and which was being pulled by another team.

A car was being driven east by one Reynolds. As Reynolds and Stover approached each other, bright lights on plaintiff's car blinded Reynolds, who flashed on his bright lights and then turned his dimmers back on. Stover then dimmed the lights on plaintiff's car and the two vehicles met and passed. As soon as these two cars passed, Stover turned his bright lights back on and then for the first time saw the back of the rear wagon 50 to 100 feet ahead. He "slammed on" his brakes "and got fairly well stopped" but was unable to stop completely or turn out in time to avoid colliding squarely with the rear of the wagon, which was almost wholly on the pavement.

The right rear wheel of the wagon was just off the pavement.

Another car driven by one Thomassen had been following Stover at a distance of 150 to 175 feet. Thomassen attempted to pass the vehicles which collided on the left but came in contact with plaintiff's car in the attempt. "Just before the collision" Stover had been driving 50 to 55 miles an hour, but he "slowed down some when the Reynolds car approached." The highway was straight and about level. Shortly after the collision defendant told Stover "he was very sorry this accident happened and it was all his fault."

Plaintiff-appellant contends, in effect, that he did not violate the foregoing statute, because the wagon was not a discernible object and that the collision occurred under such peculiar circumstances, beyond his control, as to render the assured clear distance statute inapplicable. The following matters are relied upon. The wagon was not equipped with any lighted lamp as required by Code section 5034.07. We are told that under section 5023.01 Stover had a right to assume that such unlighted wagon would not be using the highway. "The wagon had a weather-beaten under-coat on it." It was dark gray color. All appellant "saw was the glint of the lights on the steel wheels." He says he could not tell that it was a wagon. He was then too close to go around it. The meeting of the lighted Reynolds car, it is said tended to divert Stover's attention and excuse his failure to avoid striking the wagon. Stover testified that when bright lights are turned back on it takes a moment "maybe a second," for your eyes "to get adjusted."

Appellant relies upon Jeck v. McDougall Construction Co., 216 Iowa 516, 246 N.W. 595; Kimmel v. Mitchell, 216 Iowa 366, 249 N.W. 151; Kadlec v. Al. Johnson Const. Co., 217 Iowa 299, 252 N.W. 103; Schroeder v. Kindschuh, 229 Iowa 590, 294 N.W. 784, and some other decisions. Some of the cases cited by appellant hold that Code section 5023.01 is applicable only where the object in the highway is discernible. Our decisions also recognize that there may be peculiar circumstances which render the assured clear distance statute inapplicable or excuse lack of strict compliance therewith. We have held on several occasions that the statute does not apply where there were circumstances beyond the driver's control which naturally diverted his attention. In other words, failure of a motorist to avoid striking an unlighted vehicle or other object on the highway does not necessarily and under all circumstances amount to a violation of the assured clear distance requirement.

Appellee relies upon Shannahan v. Borden Produce Co., 220 Iowa 702, 263 N.W. 39; Hart v. Stence, 219 Iowa 55, 257 N.W. 434, 97 A.L.R. 535; Lindquist v. Thierman, 216 Iowa 170, 248 N.W. 504, 87 A.L.R. 893; Peckinpaugh v. Engelke, 215 Iowa 1248, 247 N.W. 822; Wosoba v. Kenyon, 215 Iowa 226, 243 N.W. 569, and some other decisions not so closely in point. In each of these cases a motorist who collided with an unlighted vehicle parked upon the highway was held to be negligent as a matter of law because he either failed to keep a proper lookout or violated the assured clear distance requirement. The Shannahan and Hart cases, supra, seem to be the strongest Iowa decisions in support of the trial court's ruling although appellant argues that the unlighted truck involved in each of these two cases was more readily discernible than the wagon in the case at bar and otherwise seeks to distinguish the decisions.

Notes on the subject under discussion appear in 87 A.L.R. 900, 97 A.L.R. 546, 133 A.L.R. 967, and 24 Iowa Law Rev. 128. See also 5 Am.Jur., p. 647, § 263.

All the cases heretofore cited except Schroeder v. Kindschuh, 229 Iowa 590, 294 N.W. 784, (in which the question of contributory negligence was held to be for the jury) arose before the assured clear distance statute was amended by the 46th G.A., Laws 1935, c. 49, by adding thereto, "such driver having the right to assume, however, that all persons using said highway, will observe the law." This amendment took effect July 4, 1935. The significance of this amendment seems never to have been considered by us except incidentally in Gookin v. Guy W. Baker & Son, 224 Iowa 967, 974, 276 N.W. 418. See, too, Anderson v. Kist, 229 Iowa 462, 468, 469, 294 N.W. 726, where it was emphasized that the plaintiff, under section 5023.01, had a right to assume that defendant's driver would comply with the law.

The legislature evidently had a purpose in amending the statute. It is our duty to give effect to the clause which the lawmakers saw fit to add to the statute, if this can fairly be done. It is a cardinal rule that each part of a statute must be given effect, if possible. This amendment to the statute unmistakably shows the legislative intent that the right to assume compliance with law on the part of others is to be...