Clark v. Umbarger

• Decision Date: 06 March 1956
• Docket Number: No. 48890,48890
• Citation: 75 N.W.2d 243,247 Iowa 938
• Parties: Harold CLARK, Appellant, v. R. D. UMBARGER, Appellee.
• Court: Iowa Supreme Court

Page 243

75 N.W.2d 243

247 Iowa 938

Harold CLARK, Appellant, v. R. D. UMBARGER, Appellee.

No. 48890.

Supreme Court of Iowa.

March 6, 1956.

Rehearing Denied May 14, 1956.

Mason & Stone, Mason City, for appellant.

Westfall, Laird & Burington, Mason City, for appellee.

PETERSON, Justice.

This is an action for damages suffered by plaintiff as a result of the automobile driven by defendant running into the rear of plaintiff's automobile at about 11:25 p. m., on the night of December 17, 1952. Plaintiff was stopped on Highway No. 65 where same enters the city of Mason City from the south. His lights, front and rear, had failed. The jury rendered a verdict in favor of plaintiff in the amount of $10,000. Motion by defendant for judgment notwithstanding the verdict was sustained. The verdict was set aside by the trial court on the one ground that plaintiff was guilty of contributory negligence as a matter of law. From this ruling plaintiff appeals.

Harold Clark is a resident of Mason City and is 37 years of age. He is a carpenter and cement worker. Upon the evening of December 17, 1952, he worked until 8 o'clock. He ate his supper at a cafe and at about 9 o'clock he went to Blue Ribbon tavern. He was there visiting with friends for about two hours and during that period drank from five to seven glasses of beer. At the tavern he met a man by the name of Hagen who asked him to take him to a farm south of Mason City where he worked. Before starting on the trip he stopped at Plaza Lunch and had a cup of coffee and sandwich. Highway No. 65 is known as Federal Avenue in Mason City. At the place involved it is 24 feet and 4 inches in width between curbs. When plaintiff had proceeded south on this highway some distance and was out in the country section and away from the built up section of the city, although still within the city limits, the lighting system on his automobile failed. Plaintiff testified he then drove his car within 8 or 10 inches from the curb and stopped. There is conflict in the evidence as to where the car was stopped, but the verdict of the jury indicates they sustained plaintiff. The curb was 4 to 6 inches in height, and the shoulder was covered with snow.

He had a flashlight in his glove compartment and he inspected the fuse to see if it was burned out. He found it was. He then lifted up the hood of his car to see if he could find an exposed wire causing the short, and he did. He had tape in his car, and he taped up the exposed portion of the wire. He also had a new fuse in the car and he proceeded to put the new fuse in place. To do this he was sitting on the cushion of the front seat with his head protruding down under the dash board and his feet extending outside of the car through the open left front door. Hagen was in the car, but was intoxicated and of no assistance.

It was at this point that the impact occurred between defendant's and plaintiff's cars. The time involved in the repair procedure was between five and ten minutes. Defendant was a police officer for the city of Mason City and he was driving a police car. During the time plaintiff was making the repairs no cars had passed in either direction. Immediately prior to the accident a man by the name of Dean Pierce was driving south on Highway No. 65 at a rate of between fifteen to thirty miles per hour. Some distance north of plaintiff's car defendant passed the Pierce car. Defendant testified he had dimmed his lights in passing the Pierce car, and he did not think he had raised them again prior to the impact. He was travelling at 45 m. p. h. or more. He testified that at a point about 125 feet north of plaintiff's car he saw the car. He applied his brakes about 80 feet north of plaintiff's car. This fact is established by the skid marks as measured by the Chief of Police the next morning. The skid marks also show that defendant was driving about four feet from the curb during all of the distance, until he struck plaintiff's car in the rear. Plaintiff's car was a 1939 Mercury and it was almost wrecked, selling afterwards for $25 as junk. The front of defendant's car was badly damaged.

Plaintiff was severely injured and was taken to the hospital. He was in the hospital about two weeks and was at home for more than two months and thereafter worked part time. His doctor testified that he was permanently incapacitated to the extent of 25%.

The able trial court submitted the case to the jury on very carefully drawn and complete instructions. He instructed clearly and at length with reference to contributory negligence.

Defendant filed motion for new trial, which was overruled. He also filed motion for judgment notwithstanding the verdict. The trial court sustained the motion on one ground only: that plaintiff was guilty of contributory negligence as a matter of law.

There is only one question in the case: whether or not the trial court erred in sustaining the motion.

Three matters should be analyzed in considering the question of submitting the case to the jury as to contributory negligence.

First: the evidence and physical facts should be construed favorably to submission.

Second: consideration of the effect of Sections 321.354 and 321.355, Code of Iowa, 1954, are for the jury.

Third: did plaintiff act as a reasonably prudent man would act under the same circumstances?

I. There have been numerous automobile cases where the question of contributory negligence is involved. In many cases the trial court has properly directed a verdict. Oftentimes the line between the matter of submission to the jury, or directing a verdict is a narrow line. Doubts should be resolved in favor of submission to the jury. It has been held in many cases that on the question of submission the testimony and physical facts must be analyzed by the trial court on a basis most favorable to plaintiff. Swan v. Dailey-Luce Auto Co., 225 Iowa 89, 93, 277 N.W. 580, 281 N.W. 504; Holderman v. Witmer, 166 Iowa 406, 409, 147 N.W. 926; Lorimer v. Hutchinson Ice Cream Co., 216 Iowa 384, 390, 249 N.W. 220; Robertson v. Carlgren, 211 Iowa 963, 972, 234 N.W. 824; Rhinehart v. Shambaugh, 230 Iowa 788, 790, 298 N.W. 876; Lawson v. Fordyce, 234 Iowa 632, 12 N.W.2d 301.

II. Referring to Sections 321.354 and 321.355, the question arises as to whether in this case there was an exception under the latter section. The pertinent portions of Section 321.354 are as follows:

'Upon any highway outside of a business or residence district no person shall stop, part, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least twenty feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of two hundred feet in each direction upon such highway; * * *.'

Section 321.355 is as follows:

'Section 321.354 shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.'

There are many decisions of this court that the question of violation and exception thereto, if any, under the above sections, are questions for the jury. Smith v. Pust, 232 Iowa 1194, 6 N.W.2d 315; Uhlenhopp v. Steege, 233 Iowa 368, 7 N.W.2d 195; Hayungs v. Falk, 238 Iowa 285, 27 N.W.2d 15; Boger v. Kellner, 239 Iowa 1189, 33 N.W.2d 369; Tuhn v. Clark, 241 Iowa 441, 41 N.W.2d 13, 15 A.L.R.2d 903; Heidebrink v. Messinger, 241 Iowa 1188, 44 N.W.2d 713.

On the question of plaintiff leaving the highway, after the lights failed, the witness Pierce testified: 'It appeared to me that a car going at a slow rate of speed could not have been pulled up on that shoulder.' The court instructed carefully on this feature of the case, and with this evidence the jury would find it impossible or impracticable to leave the highway.

III. As a general statement on submission of automobile cases to the jury, we quote the following provisions from Cyclopedia of Automobile Law and Practice by Blashfield, Sections 6618 and 6620:

'Ordinarily, the question of contributory negligence is for the jury.

'Where there is any dispute, based on credible evidence, as to the controlling facts on the question of whether one injured in an automobile accident has been guilty of negligence contributing to such injury, or where reasonable men might honestly or with equal plausibility draw from the established facts different conclusions, one of which would make the injured person guilty of negligence and the other indicate that he was in the exercise of due care, the question is for the jury; this being so, even though plaintiff's evidence does not conclusively show freedom from contributory negligence.' * * *

'The rule stated in section 6618, applicable generally on the question of contributory negligence, has caused the courts to submit to the jury the matter of a motorist's contributory negligence where a collision took place upon a curve; where a motorist approached the top of a hill without sounding his horn as a statute required; where a truck without tail lights was parked on a highway on a dark and rainy night and was run into by a passing motorist; where a motorist failed to get all the wheels of his automobile off the pavement when he stopped to look at the tires, and where a car skidded to the wrong side of the street and caused an accident. * * *'

There are many decisions which hold that where reasonable minds may reach different conclusions from the facts presented, the case should be submitted to the jury. Short v. Powell, 228 Iowa 333, 335, 291 N.W. 406; Lathrop v. Knight, 230 Iowa 272, 276...