Clayton v. McIlrath

Decision Date14 November 1950
Docket NumberNo. 47723,47723
Citation241 Iowa 1162,44 N.W.2d 741,27 A.L.R.2d 307
Parties, 27 A.L.R.2d 307 CLAYTON v. McILRATH.
CourtIowa Supreme Court

Cross & Hamill, of Newton, for appellant.

Tomasek & Vogel, of Grinnell, for appellee.

GARFIELD, Chief Justice.

On July 3, 1949, in daylight, defendant's 1948 Olds followed by plaintiff's 1937 Lincoln Zephyr was proceeding south on Highway 146, surfaced with 'blacktop' 24 feet wide and 5-foot dirt shoulders. Defendant's car in turn was following a 1931 Chevrolet driven by Ebert. Plaintiff turned out to the left to pass defendant's car.

The evidence in the light most favorable to plaintiff is that he sounded his horn, increased his speed of 35 to 40 miles per hour to 40 to 50 miles an hour and started to pass defendant on the left. When the front of plaintiff's automobile was about even with defendant's steering wheedl defendant suddenly, without warning, turned to the left and started to pass the Ebert (front) car. Plaintiff turned farther to the left to avoid colliding with defendant's Olds, struck an 8 by 8 inch timber on the edge of the shoulder, thereby lost control of his car and it was thrown into the ditch along the east (left) side of the road. After traveling south in the ditch about 170 feet he struck a raised driveway leading into a farmyard, turned end over end and came to rest 30 to 35 feet south of the driveway.

Upon the trial plaintiff had verdict and judgment for $600. Defendant's appeal alleges errors in instructing the jury, refusal of requested instructions, denial of a new trial, and refusal to direct a verdict on the ground plaintiff was contributorily negligent as a matter of law.

I. The third and fourth charges of negligence in plaintiff's petition are that defendant was negligent in turning his vehicle from a direct course upon the highway (3) without first ascertaining if such movement could be made with safety and (4) without giving an appropriate signal to plaintiff either by means of his hand and arm or other proper signal or signal device, all as required by sections 321.314 to 321.318, Code 1946, inclusive, I.C.A.

The first instruction to the jury, designated statement of issues, contains the substance of the above specifications of negligence. The tenth instruction, evidently intended to inform the jury as to the law governing these specifications, states in the first paragraph that plaintiff contends defendant was negligent as alleged in the third and fourth charges, repeating the third and abbreviating the fourth thus, 'without giving an appropriate signal to plaintiff of his intention to change from the right to the left-hand side of the highway for the purpose of passing the preceding (Ebert) car.' No reference is here made to Code section 321.314 et seq., I.C.A.

The second paragraph of instruction 10 states merely it was defendant's duty before turning from a direct course to the left for the purpose of passing a preceding vehicle to use ordinary care to ascertain whether such movement could be made in safety and a failure to use such care would be negligence. No complaint is made of this portion of the instruction nor of the submission of the third charge of negligence. Neither the tenth nor any other instruction states defendant was under any duty to give a signal of his intention to turn out to the left and the instructions are silent as to the law with respect to the fourth charge of negligence.

Defendant objects to the parts of instructions 1 and 10 which refer to the fourth specification of negligence because it is not applicable to the facts in the case. Defendant argues he was not required to give the signal by arm and hand or other appropriate means required by Code sections 321.314 to 321.318, I.C.A., inclusive, of one who is about to 'turn a vehicle from a direct course upon a highway'. The contention is that merely turning out to pass a preceding car is not turning from a direct course and that section 321.314 applies mainly, if not wholly, to turning at intersections and driveways.

Plaintiff contends the fourth charge of negligence was not submitted to the jury, the references thereto were not prejudicial to defendant and the instructions are less favorable to plaintiff than he was entitled to since defendant was required under the circumstances to give a signal of his intent to turn from a direct course.

Whether or not a signal was required of defendant under the circumstances the references in instructions 1 and 10 to the fourth charge of negligence, coupled with failure to instruct on the law applicable thereto, cannot be approved. If the trial court did not intend to submit the fourth specification the instructions should have made no reference thereto. We have frequently pointed out it is better practice not to refer in the instructions to an issue that for lack of evidential support or otherwise is not submitted to the jury. Forrest v. Sovereign Camp, W.O.W., 220 Iowa 478, 483, 261 N.W. 802; Lange v. Bedell, 203 Iowa 1194, 1202, 212 N.W. 354; Canfield v. Chicago, R. I. & P. R. Co., 142 Iowa 658, 663, 121 N.W. 186, and citations.

If the statement of the issues for any reason (as where the issue has been referred to in the jury's presence during the trial) contains an issue not finally submitted to the jury, the instructions should plainly say such issue is withdrawn from the jury's consideration.

If, conceding the propriety thereof, the trial court intended to submit the fourth charge of negligence obviously the jury should have been instructed upon the law applicable thereto.

It is true, as plaintiff argues, the mere statement of the issues raised by the pleadings does not ordinarily operate as submission of a question to the jury and whether the inclusion therein of an issue not submitted is reversible error depends upon whether such action in the particular case appears to have been prejudicial. See authorities supra. We observe, however, that instruction 1 here commences, 'Under the issues submitted to you plaintiff alleges * * *' and ends, 'These are the issues submitted to you * * *. Whether they have been sustained, you must determine from the evidence * * *.'

Since the instructions do not state defendant was under a duty to give a signal by arm and hand or otherwise, thus inferentially rejecting plaintiff's contention such a signal was required, we think reference to plaintiff's fourth charge of negligence in the statement of the issues and in instruction 10, while not to be approved, was not sufficiently prejudicial to defendant to warrant reversal.

We find it unnecessary to determine the question so strenuously argued as to whether it was defendant's duty under the circumstances to give the appropriate signal by hand and arm or otherwise that section 321.314 et seq. require of a motorist who is about to turn a vehicle from a direct course upon a highway. Such a question seems never to have been squarely decided by us.

Janvrin v. Broe, 239 Iowa 977, 986, 987, 33 N.W.2d 427, 432, 433, cited by defendant, holds merely that a motorist is not required to give the signal required by section 321.314 et seq., when starting a parked vehicle. In such case section 321.313 governs. Obviously a motorist who is starting a parked car cannot possibly give the signal required by section 321.315 for the last 100 feet traveled by him before turning. In Johnson v. Kinnan, 195 Iowa 720, 192 N.W. 863, relied on by plaintiff, plaintiff's vehicle was approaching an intersection where he said he intended to turn.

We may observe, however, that irrespective of section 321.314 et seq. the common-law duty of a motorist to exercise ordinary care may in a particular case warrant a finding of negligence where the motorist fails to give an appropriate signal of his purpose to turn out to the left to pass a car ahead when such movement may involve danger to other users of the highway. See Miller v. Lowe, 220 Iowa 105, 107, 261 N.W. 822; Cardell v. Tennessee Elec. Power Co., 5 Cir., 79 F.2d 934; Federal Insurance Co. v. Employers Liability Insurance Corp., La.App., 4 So.2d 626; Smith v. Yellow Cab Co., 285 Pa. 229, 132 A. 124; Riccio v. Ginsberg, 49 R.I. 32, 139 A. 652, 62 A.L.R. 967; 60 C.J.S., Motor Vehicles, § 303c, p. 719; Huddy, Automobile Law, 9th Ed., Vol. 3-4, section 132, page 218: 'Even in the absence of statute, the driver of an automobile may be charged with negligence if, without warning to a vehicle approaching from the rear, he turns his machine so that the rear vehicle is unable to stop or avoid a collision.'

The common-law duty to exercise ordinary care under the circumstances, irrespective of statute, rests on a motorist at all times. Statutory rules of the road are cumulative and do not abrogate this common-law duty. They set the minimum, rather than the maximum, standard of care. Compliance with statute is not all that is required of a motorist. See Langner v. Caviness, 238 Iowa 774, 779, 28 N.W.2d 421, 424, 172 A.L.R. 1135, 1138; Delfs v. Dunshee, 143 Iowa 381, 385, 122 N.W. 236; Sulham v. Bernasconi, 106 Vt. 192, 170 A. 913; 60 C.J.S., Motor Vehicles, § 268, p. 648; 5 Am.Jur., Automobiles, section 280, page 657.

II. Defendant complains of the refusal of his fourth requested instruction which stated in substance that if plaintiff failed to use reasonable care in applying brakes and checking the speed of his automobile after failing to pass defendant and such failure directly contributed to the injuries complained of, this would constitute contributory negligence.

At best it is doubtful if defendant's objections in the trial court to the refusal of his requested instructions were sufficient to entitle him to a consideration of the alleged errors based thereon. See Pond v. Anderson, Iowa, 44 N.W.2d 372, and citations. However, we think the thought of defendant's fourth request is sufficiently covered by the instructions given, especially instructions 16 and 17. Six instructions were given on the issue of pl...

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  • Overton v. Fields
    • United States
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    • December 20, 1960
    ...acquisition of any assurance that the driver of the automobile in front of him has heard his audible signal, Clayton v. McIlrath, 241 Iowa 1162, 44 N.W.2d 741, 27 A.L.R.2d 307, is aware of his presence, or has accorded him the right of way to pass such vehicle. If such assurance is required......
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    ...McLaughlin v. Curry, 1928, 242 Mich. 228, 218 N.W. 698; Banta v. Hestand, 1938, 181 Okl. 551, 75 P.2d 415; Clayton v. McIlrath, 1950, 241 Iowa 1162, 44 N.W.2d 741, 27 A.L.R.2d 307; Werner Transp. Co. v. Zimmerman, 7 Cir., 1953, 201 F.2d 687; Alexander v. Cowart, 58 N.M. 395, 271 P.2d In McL......
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