Clubb v. Osborn
| Decision Date | 20 October 1964 |
| Docket Number | No. 51430,51430 |
| Citation | 130 N.W.2d 648,256 Iowa 1154 |
| Parties | Norma Jean CLUBB and Dale E. Clubb, Appellees, v. Lewis H. OSBORN, Appellant. |
| Court | Iowa Supreme Court |
Brierly, McCall & Girdner, Newton, for appellant.
Korf, Dichl, Clayton & Cleverley, Newton, for appellees.
This is an appeal from an order of the trial court granting a new trial in a motor vehicle collision case.
The collision occurred within the city limits of Newton near the intersection of Highway Number 14 and North Fifth Avenue West.
Highway Number 14 is also West Eighth Street North. It runs north and south curving slightly to the east as it extends north from the location involved herein. Highway Number 14 is paved. The pavement is twenty feet wide with a shoulder on the east side at least seven feet five inches wide.
North Fifth Avenue West from a T intersection with Highway Number 14 runs east. At the time involved it was lightly surfaced with gravel. The traveled portion was twenty-four feet four inches wide. Nine feet north of North Fifth Avenue West there is an east-west sidewalk turning at night angles to the south. It does not extend to Highway Number 14. West of the sidewalk, north of North Fifth Avenue West and east of the shoulder on Highway Number 14, there is a utility pole and a fire hydrant. A plat of the area showing directions, locations and distances was introduced at the trial without objection.
The following is a tracing of the material portion of this plat. The broken line in the part shown as Highway Number 14 is the center line of the pavement. The distances shown were supported by testimony and were not in dispute.
On the afternoon of October 13, 1960 plaintiff, Norma Jean Clubb, was driving a Dodge automobile, hereinafter called plaintiff's car, owned by her husband, plaintiff Dale E. Clubb, north on Highway Number 14. She was approaching the intersection with North Fifth Avenue West from the south. Riding in the front seat with her were her son, about four years old and her stepson, about fifteen years old. Riding in the back seat were two subteen neighbor girls. As they lived nearby, the girls were to disembark at or near the intersection.
It was raining. The pavement was wet and the condition of North Fifth Avenue West not very inviting. Mrs. Clubb was driving well within the speed limit. She reduced the speed of her car and stopped so the neighbor girls could get out. Whether or not she gave an appropriate signal of her intention and where she stopped are disputed issues of fact.
At the same time defendant was driving his 2 1/2 ton truck in the same direction on the same Highway Number 14 and according to his testimony at 25 to 30 miles per hour and about 40 to 50 feet behind plaintiff's car. Defendant was traveling in a 25 mile per-hour speed zone. Defendant's truck collided with the rear of plaintiff's car. Plaintiff's car was propelled some distance north and east into an adjacent yard. Defendant's truck stopped on the pavement.
Mrs. Clubb claims personal injuries. Mr. Clubb claims damage to his car. Each seeks recovery from defendant. Defendant claims damage to his truck and by counterlaim seeks recovery against both plaintiffs. The case was submitted to a jury.
Questions of injury, damages and amounts thereof are not involved in this appeal. Instructions to the jury are involved. Defendant took no exceptions to the submission to the jury of plaintiffs' several specifications of negligence against defendant involving speed in its several aspects, lookout, failure to reduce speed when approaching an intersection, following too closely and control. By noting that no exceptions to these particular instructions were taken we are not suggesting that exceptions if taken should have been sustained.
In connection with plaintiffs' claims and on the subject of contributory negligence the court gave Instruction Number 15 as follows:
'You are further instructed, however, that the operator of a motor vehicle has the right to stop his vehicle on a street or highway in a residence district so long as such stopping does not violate the provision of the foregoing law.' (Emphasis added.)
Plaintiffs took exception to the giving of this instruction as without support and inapplicable. We have abbreviated the exception that detailed plaintiffs' objections and reasons.
In connection with defendant's counterclaim against plaintiffs the court submitted the specification of failure to keep a propoer lookout. No exception was taken Additional specifications were included in Instructions numbered 25 and 26. Instruction Number 25 was as follows:
'It is the claim of defendant Osborn in his counterclaim against plaintiffs that plaintiff, Norma Jean Clubb, was negligent in stopping her vehicle and creating a sudden emergency at a time and under conditions that plaintiff knew or should have known that such maneuver would result in a collision and damage.
'In connection with this claim of negligence, you are instructed that the laws of Iowa provide that no person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal (a hand and arm or by mechanical or electrical directional signal device) to the driver of any vehicle immediately to the rear, when there is opportunity to give such signal.
'If you find that plaintiff, Norma Jean Clubb, violated the provision of this law, she would be guilty of negligence.'
To this instruction plaintiffs took exception.
Instruction Number 26 was as follows:
It is the claim of defendant Osborn in his counterclaim against plaintiffs that plaintiff Norma Jean Clubb was negligent in stopping her vehicle within an intersection, within five feet of a fire hydrant, or on a crosswalk.
'The law of Iowa provides no person shall stop, stand or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with the direction of a police officer, or traffic control device, within an intersection, within five feet of a fire hydrant, or on a crosswalk.
'If you find plaintiff Norma Jean Clubb violated the provisions of this law she would be guilty of negligence.'
Plaintiffs excepted to the giving of this instruction as unsupported by the evidence.
The jury returned verdicts against plaintiffs and in favor of defendant on plaintiffs' claims and in favor of defendant against both plaintiffs on the counterclaim.
Plaintiffs' motion for new trial contained 29 separately numbered paragraphs. Paragraph number 21 attacked the giving of instruction number 15 quoted supra. On this ground the trial court sustained the motion. Defendant appeals.
I. While considering the specific problems before us certain basic propositions about which there is no controversy should be kept in mind.
It is error to submit an issue having no support in the record. Grimes v. The Simpson Centenary College, 42 Iowa 589, 592; Bierkamp v. Beuthien, 173 Iowa 436, 438, 155 N.W. 819; Reed v. Pape, 226 Iowa 170, 173, 284 N.W. 106.
'When the court instructs the jury upon a certain question in a case there must be some evidence upon which to base such instruction.' Wilson v. Kouri, Iowa, 122 N.W.2d 300, 304.
Generally questions of negligence, contributory negligence and proximate cause are for the jury; it is only in exceptional cases that they may be decided as a matter of law. Citations unnecessary. See rule 344(f) 10, Rules of Civil Procedure, 58 I.C.A.
In considering whether or not there was evidentiary support for an instruction we give the evidence the most favorable construction it will reasonably bear. By analogy see rule 344(f) 2, Rules of Civil Procedure.
Our court is slower to interfere with the grant of a new trial than with its denial. Rule 344(f) 4, Rules of Civil Procedure.
If there are grounds for new trial properly urged, other than stated by the trial court, we may consider them and affirm. Hall v. City of West Des Moines, 245 Iowa 458, 467, 62 N.W.2d 734.
II, If appropriate to the factual situation and the claims of either plaintiffs or defend...
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...since it is error to submit an instruction having no support in the record and a mere scintilla is not enough. Clubb v. Osborn, 256 Iowa 1154, 1160, 130 N.W.2d 648, 652. This was the actual basis for affirmance in DeMoss. The quoted statement was not necessary for In addition to the quoted ......
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...principles of law. The trial court adopted instruction 2.2 of Uniform Jury Instructions. In this regard see also Clubb v. Osborn, 256 Iowa 1154, 1161, 130 N.W.2d 648. On the other hand we condemned an instruction on contributory negligence comparable to that proposed by these defendants in ......
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...Rather, the negligence of a claimant which will bar recovery for negligence of another must in fact be contributory. Clubb v. Osborn, 256 Iowa 1154, 1161, 130 N.W.2d 648, and Restatement, Torts 2d, sections 464--466. See also Rule 97, R.C.P., and Katcher v. Heidenwirth, 254 Iowa 454, 458--4......
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