Clubb v. Osborn

• Decision Date: 07 March 1967
• Docket Number: No. 52440,52440
• Citation: 260 Iowa 223,149 N.W.2d 318
• Parties: Norma Jean CLUBB and Dale E. Clubb, Appellants, Cross-Appellees, v. Lewis H. OSBORN, Appellee, Cross-Appellant.
• Court: Iowa Supreme Court

Page 318

149 N.W.2d 318

260 Iowa 223

Norma Jean CLUBB and Dale E. Clubb, Appellants, Cross-Appellees, v. Lewis H. OSBORN, Appellee, Cross-Appellant.

No. 52440.

Supreme Court of Iowa.

March 7, 1967.

Korf, Diehl, Clayton & Cleverley, Newton, for appellants, cross-appellees.

Brierly, McCall & Girdner, Newton, for appellee, cross-appellant.

MASON, Justice.

This law action arose out of an automobile collision about 3:45 p.m., October 13, 1960, in a residential district of Newton, between a vehicle owned by plaintiff Dale E. Clubb driven by his wife Norma Jean and a vehicle owned and operated by defendant Lewis H. Osborn.

In Division I of plaintiffs' petition Norma Jean sought damages for personal injuries resulting from defendant's alleged negligence. In Division II Dale sought damages sustained to his vehicle. Defendant counterclaimed against both plaintiffs for damages to his truck.

Trial resulted in jury verdicts against both plaintiffs and defendant. Plaintiffs' and defendant's motions for new trial were overruled and both sides have appealed.

This matter has previously been before us. The first trial in May 1963 resulted in jury verdicts against both plaintiffs and in favor of defendant. A new trial was granted and defendant appealed. We affirmed the grant of a new trial, Clubb v. Osborn, 256 Iowa 1154, 130 N.W.2d 648.

I. Highway 14 at the point material in this case runs generally in a north-south direction and is designated West Eighth Street North. North Second Avenue West, North Fourth Avenue West and North Fifth Avenue West all run in an east-west direction. There is an overhead highway bridge on highway 14 over the railroad between North Second Avenue West and North Fourth Avenue West. The concrete portion of highway 14 near North Fifth Avenue West is 20 feet wide.

There was a dirt and gravel shoulder on the east and a sidewalk running east and west along the north side of North Fifth Avenue West. A short piece of a northsouth sidewalk on the east side of highway 14 joined with the other sidewalk, forming an L.

Earlier Mrs. Clubb had driven her husband's automobile to a supermarket on North Second Avenue West. Where she met Joyce Garr and Ruth Woody who asked for a ride to their homes. They lived a block east of highway 14 on the corner of Fifth Avenue. It was raining at the time. As she left the supermarket Mrs. Clubb drove west on North Second Avenue West with her two sons, Douglas and Donald, in the front seat and the neighbor girls in the back seat. When she came to highway 14, she stopped, turned north onto the highway, went across the overhead bridge and past the Iowa Southern Utilities substation immediately north of the railroad bridge. At the same time defendant, accompanied by his hired man, was driving his 2 1/2-ton stock truck north, following the vehicle operated by Mrs. Clubb.

As plaintiff approached the intersection of North Fifth Avenue West, she contends she pulled over and brought the car to a stop a short distance north of Fifth Avenue, so the girls could alight. As they opened the back door defendant struck the rear of plaintiff's car, forcing it over a bank and down into a yard. After the impact defendant's truck went forward approximately three to four feet.

The place where plaintiff stopped and whether she gave an appropriate signal of her intention to so stop are the disputed issues of fact. The position of the front end of the Osborn truck after impact with reference to the sidewalks, shoulder and travel portion of North Fifth Avenue West was variously described.

Questions of injuries, damages and amounts are not involved in this appeal.

II. Defendant assigns as error relied on for reversal the trial court's refusal to receive into evidence plaintiffs' original petition which defendant offered as an admission.

Plaintiffs assign as errors (1) overruling their motion for directed verdict against defendant's counterclaim and overruling paragraph 3 of their motion for new trial; (2) overruling certain other paragraphs of their motion for new trial, and (3) paragraphs 5 and 19 thereof.

We first consider defendant's assignment of error.

Plaintiff's original petition contained an allegation in paragraph 10 that the collision occurred 'at' the intersection of West Eighth Street North and North Fifth Avenue West in Newton. In their second amendment they changed the allegation to read the collision took place 'immediately north of' the intersection. Defendant contends, since the place of collision was in dispute not only in this action but in the first trial, he had the right to have this alleged inconsistency in plaintiffs' pleadings considered by the jury for the purpose of verifying his testimony as to the place where plaintiff stopped the car. He contends this could have had a direct bearing on the jury's evaluation of the counterclaim and failure to admit the pleading in evidence as an admission was prejudicial requiring a reversal only as to his counterclaim.

When a pleading is amended or withdrawn, the superseded portion disappears from the record as a judicial admission limiting the issues and putting certain facts beyond dispute. Nevertheless, it exists as an utterance once deliberately made and may be used as a quasi-admission like any other utterance of the party as an item of evidence, not final or conclusive. The opponent, whose utterance it is, may nonetheless proceed with his proof in denial of its correctness; it is merely an inconsistency which discredits, in a greater or less degree, his present claim and his other evidence. 4 Wigmore on Evidence, Third Ed., §§ 1059 and 1067.

'We have never changed our position that the opposite party was entitled to introduce inconsistent pleadings relating to the same issue into evidence for whatever the jury might find it worth in arriving at the truth of the controversy.' Katcher v. Heidenwirth, 254 Iowa 454, 466, 118 N.W.2d 52, 58--59, 6 A.L.R.3d 1293, citing 31 C.J.S. Evidence § 304, and several other Iowa cases containing a discussion of the problem which need not be repeated here.

We will say, however, we have serious doubt that there is an inconsistency in the two allegations.

In any event, rejection of the offered pleading was not prejudicial in this instance and we would not reverse on this ground.

III. Plaintiffs moved for a directed verdict against defendant's counterclaim on the ground the undisputed evidence showed defendant failed to keep a proper lookout and was driving at a speed in excess of the 25 m.p.h. speed limit. In their motion for new trial they contend defendant was guilty of contributory negligence as a matter of law; that the submission of defendant's counterclaim to the jury was confusing and misleading and highly prejudicial to them. They argue although there was a jury verdict in their favor on the counterclaim, its submission created an opportunity for the jury to speculate and compromise.

The complaint about excessive speed in this residential district is based on Norma Jean's testimony that when she asked defendant why he hit her car, he replied 'I was going a little too fast' and on cross-examination defendant testified, 'Just before the collision I was traveling 25 m.p.h.' He admitted at the former trial he had testified he was traveling 25 to 30 m.p.h. and that he wasn't 'changing that today. * * * I was watching the road, not my speedometer. I could have been off as much as 5 m.p.h. * * * I estimated my speed at 25 to 30 m.p.h. * * * My speed was 25 to 30 m.p.h. before I put on my brakes. I put on my brakes before the collision.' He again admitted that on the former trial he testified 'immediately prior to the collision my speed was between 25 and 30 m.p.h.'

Plaintiffs contend for the rule announced in Kisling v. Thierman, 214 Iowa 911, 914, 243 N.W. 552, 554, which holds the violation of statutory rules of the road other than what is now section 321.298, Code, 1966, is negligence as a matter of law unless a legal excuse for such violation is shown. Defendant argues there is a contradiction whether he violated the speed statute.

Plaintiffs' remaining complaint under this assignment, defendant's failure to keep a lookout, is also based on testimony by defendant on cross-examination that he had plaintiff's car in view from the railroad overpass as moving traffic, a distance of 800 to 1000 feet; that the first time he saw plaintiff's car was when he was 40 to 50 feet from the car when it was stopped. He admitted there was nothing to prevent him from seeing the car at any time from the point he came over the bridge; there was no traffic between his truck and plaintiff's car and he didn't see any turn lights or taillights ahead. His hired man testified 'I had no difficulty seeing it and the car was perfectly visible, but I don't know how far it was from the point of collision, I just saw it.'

We have many times announced what a proper lookout means. Among our recent pronouncements are Campbell v. Martin, 257 Iowa 1247, 136 N.W.2d 508, 511, and citations; Schneider v. Swaney Motor Car Co., 257 Iowa 1177, 136 N.W.2d 338, 342; Christensen v. Kelley, 257 Iowa 1320, 1325, 135 N.W.2d 510, 513; Cunningham v. Court, 248 Iowa 654, 660--661, 82 N.W.2d 292, 296.

'The rule in Iowa is firmly fixed that a jury finding against defendant on his counterclaim obviated any prejudice from an alleged error of which plaintiff might otherwise complain (citing cases). This is particularly true as to a case involving contributory negligence in defendant's counterclaim.' Cunningham v. Court, supra, 248 Iowa, at 662, 82 N.W.2d, at 296--297; Schneider v. Keokuk Gas Service Co., 250 Iowa 37, 39, 92 N.W.2d...