Christensen v. Kelley

• Decision Date: 08 June 1965
• Docket Number: No. 51654,51654
• Citation: 257 Iowa 1320,135 N.W.2d 510
• Parties: , 16 A.L.R.3d 885 Helen Maxine CHRISTENSEN, Administratrix of the estate of Raymond W. Christensen, deceased, Appellant, v. Gerald KELLEY, Appellee.
• Court: Iowa Supreme Court

Page 510

135 N.W.2d 510

257 Iowa 1320, 16 A.L.R.3d 885

Helen Maxine CHRISTENSEN, Administratrix of the estate of Raymond W. Christensen, deceased, Appellant, v. Gerald KELLEY, Appellee.

No. 51654.

Supreme Court of Iowa.

June 8, 1965.

Rehearing Denied Sept. 20, 1965.

J. R. McManus, Des Moines, R. W. Cockshoot, Atlantic, and Grant E. McMartin, Harlan, for appellant.

George O. Hurley, R. E. Hines, and Fred Louis, Jr., Harlan, for appellee.

LARSON, Justice.

Teenage drivers are not always at fault when involved in an automobile accident. At least that was the decision of a Shelby County jury in an action at law for damages brought by the administratrix of the estate of Raymond W. Christensen, deceased, against Gerald Kelley, the father of Randall R. Kelley, age 16 years, who was the authorized operator of his father's car when it collided with the Christensen automobile.

Among various specifications of negligence in plaintiff's petition, it was alleged that defendant's operator failed to keep a proper lookout, failed to give an adequate warning signal of his approach, and failed to yield one half the traveled portion of the roadway when meeting another vehicle. The trial court refused to submit these issues to the jury, and its refusal to do so together with a charge of undue emphasis in the instructions on plaintiff's burden to prove freedom from contributory negligence, are the assignments of error relied upon for reversal. The rules of law involved are not greatly in dispute, but their application to the evidentiary facts produced is the source of this controversy. We are inclined to believe the trial court was right.

From the record we learn this accident occurred on the 21st day of December, 1960, at or near the crest of a steep hill on an east-west country road about five miles south and a half mile west of Elk Horn, Iowa. At this place the road had a rock or gravel surface 23 feet wide, and it was dry. At this time it was dark, about 7 or 7:15 P.M., and the weather was clear and cold. The plaintiff's decedent, with his family, in a 1955 Chevrolet four-door sedan approached the hill from the west, and defendant's son Randall Kelley with two passengers in the front seat of defendant's 1950 Chrysler four-door sedan approached it from the east. Kelley was driving between 25 and 30 miles per hour and, although the speed of the Christensen car was not shown, Mrs. Christensen said 'it wasn't very fast.' The investigating highway patrolman opined that speed was not a factor involved. No one in the Christensen car was aware of the presence of another car in the vicinity just prior to the collision, but two of the occupants of the Kelley car had seen the reflection from the lights of the car approaching from the west. They testified Kelley then pulled entirely into his right lane and dimmed his lights. Due to the sharpness of the hill crest there was only a brief interval after the headlights of the respective cars became visible before they came together. The Kelley car came to rest a little west of the crest of the hill facing south, with the rear end in the north ditch. The Christensen car traveled about 168 feet eastward before it left the highway on the south side, and then some 48 feet more eastward in the ditch. Its left front wheel was sheared off in the collision and a gouge mark appeared near the center of the roadway about 15 feet east of the Kelley car extending eastward some 12 feet where considerable glass and debris appeared in the eastbound lane of travel.

Perhaps we should first refer to some applicable general rules relating to the duty imposed by common law and by statute upon operators of motor vehicles in this state.

I. We have often said that the common-law duty to exercise ordinary care under the circumstances, irrespective of statute, rests upon a motorist at all times, that statutory rules of the road are cumulative, that they may enlarge but not abrogate this common-law duty, that they set a minimum, rather than a maximum, standard of care, and that compliance with a statute is not all that is required of a motorist. Mongar v. Barnard, 248 Iowa 899, 904, 82 N.W.2d 765, 769; Clayton v. McIlrath, 241, Iowa 1162, 1168, 44 N.W.2d 741, 745, 27 A.L.R.2d 307, 313.

Usually the question of whether a motorist breached his duty of exercising ordinary care under the circumstances, and whether his negligence in so doing was a proximate cause of the accident and injury of defendant, is for the jury, and in considering whether the circumstances require submission, the evidence must be viewed in a light most favorable to plaintiff. Law v. Hemmingsen, 247 Iowa 855, 857, 76 N.W.2d 783, 784; Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 196, 61 N.W.2d 696, 698, and citations; Hebert v. Allen, 241 Iowa 684, 687, 41 N.W.2d 240, 242.

However, in considering a motorist's duty to exercise ordinary care not to injure or damage another rightfully using the highway, a motorist has a right to assume until he knew, or in the exercise of reasonable care should have known, otherwise, that other motorists would observe the law and exercise reasonable care--the care of a reasonably prudent man under the circumstances. Culbertson v. Anderson, 251 Iowa 265, 268, 269, 100 N.W.2d 633; Mathews v. Beyer, 254 Iowa 52, 56, 116 N.W.2d 477, 479, and citations; Kuehn v. Jenkins, 251 Iowa 557, 563, 100 N.W.2d 604.

With these well-established rules in mind we shall consider the appellant's first three assignments.

II. Appellant contends the trial court erred in refusing to submit to the jury the issue of lookout. She maintains the evidence of Kelley's failure to exercise ordinary care under the circumstances in maintaining a lookout required such submission. We cannot agree.

Keeping a proper lookout is not a statutory duty in Iowa, but is a common-law duty imposed upon motorists to exercise ordinary care under the circumstances in maintaining a lookout. Miller v. Stender, 251 Iowa 123, 129, 98 N.W.2d 338, 342, and citations; Cunningham v. Court, 248 Iowa 654, 660, 661, 82 N.W.2d 292, 296, and citations.

Proper lookout, we have often said, implies being watchful of the movements of the driver's own vehicle as well as the movements of the thing seen or seeable, and involves the care, watchfulness and attention of the ordinarily prudent person under the circumstances. Kuehn v. Jenkins, supra, 251 Iowa 718, 725, 726, 100 N.W.2d 610, 614, 615, and citations; Olson v. Truax, 250 Iowa 1040, 1048, 97 N.W.2d 900, 905.

Appellee contends, and the trial court found, there was no evidence of Kelley's failure to keep a proper lookout as required under our decisions. Of course, plaintiff had the burden to prove her allegations of a breach of duty in this regard by substantial evidence of sufficient weight to generate a jury question.

A careful review of the record reveals that, while young Kelley was aware of the presence of another vehicle in the vicinity prior to its appearance at the hill crest, he actually saw its position only an instant after it came into sight, and that this was too late to avoid the collision.

There was no evidence that the operator of the Kelley car was not watchful of the road ahead, of his position on the roadway as he approached the hill crest, of the reflected light of the approaching car, or that he did not see it as soon as it was seeable. The only evidence which might infer a failure of defendant to be watchful of the movements of his own vehicle was the testimony of Mrs. Christensen that they were in their own right-hand lane as they came over the hill crest just before the collision, and that the accident occurred in their right-hand lane of travel. See Hackman v. Beckwith, 245 Iowa 791, 802, 64 N.W.2d 275; Pazen v. Des Moines Transportation Co., 223 Iowa 23, 27, 28, 272 N.W. 126. However, she had been less sure of that statement in a former trial when she answered the question, 'And you don't know whether you were on the south side of the road or the middle of the road?' by stating, 'No, I wouldn't say for sure because I don't know.' While, as we shall point out, this testimony might raise an inference that Kelley was not on his own side of the road as he came to the hill crest in violation of the duty imposed upon him by section 321.364 of the Code, I.C.A., we do not believe it sufficient here to generate a jury question of his failure to maintain such a lookout. Indeed it cannot be said in every instance where there is any conflict in the evidence as to which side of the center line the plaintiff was driving at the time of the accident, an issue for the jury on lookout is presented. Ehrhardt v. Ruan Transport Corp., supra, 245 Iowa 193, 196, 61 N.W.2d 696, 698, and citations. Under the conditions here we feel the evidence might generate an issue as to the violation of the duty imposed by section 321.364 of the Code, I.C.A., but not the duty to maintain a proper lookout. We are satisfied here there was no evidence he did not see all that was seeable and was not watchful of his own movements up to the instant before the collision, which of course is the primary requisite of that duty.

Young Kelley testified, 'As I approached the top of the hill I was in the north lane on the right side with relation to the center of the highway. I was looking straight ahead at that time and I observed the glare of the lights of the oncoming car as I proceeded up the hill. As I approached the top of the hill, a car came over the hill and we collided.' As to the time lapse after the other car became visible he said, 'I have no idea of how much time elapsed from the time I first saw the automobile until the time of the collision. It just happened too fast. I took my foot off the accelerator and tried to turn to the right.' Mrs. Christensen also said she did not know where they were when she first saw the Kelley car. She testified, 'It just happened so fast. * * * I just seen the light and then, bang,...