Cooley v. Killingsworth

• Decision Date: 21 January 1930
• Docket Number: 39965
• Parties: VERNER COOLEY, Appellee, v. J. L. KILLINGSWORTH et al., Appellants
• Court: Iowa Supreme Court

228 N.W. 880

209 Iowa 646

VERNER COOLEY, Appellee, v. J. L. KILLINGSWORTH et al., Appellants

No. 39965

Supreme Court of Iowa, Des Moines

January 21, 1930

Appeal from Polk District Court.--O. S. FRANKLIN, Judge.

Action for damages for personal injuries sustained by plaintiff as the result of a collision between a motorcycle driven by plaintiff and an automobile driven by defendant Killingsworth. Defendant The American Asphalt Roof Corporation owned the automobile, and it is contended that it was being driven with the owner's consent. The jury returned a verdict for plaintiff for $ 25,375, against both defendants, and they appeal.

Reversed.

Sargent Gamble & Read, for appellants.

Stuart & Stuart, C. C. Putnam, and Guy S. Calkins, for appellee.

OPINION

FAVILLE, J.

The accident out of which this litigation arose occurred at about 5:30 P. M. on July 30, 1926, on a public highway between Norwood and Lucas. The road extends north and south. It is a dirt road, with a ditch on each side. It is approximately 24 feet wide between the ditches. On the day in question sometime prior to the accident, a 12-foot road grader had passed over this road, making two trips. The method of operation of this grader had been to move it along the east and west sides of the road with the blade of the grader set on an angle and the forward end of the blade extended into the ditch. By this operation clods, sod, and dirt were carried to the crown of the road and deposited there, the two rows extending longitudinally of the road and parallel to each other, with a space between. The rows were each 6 or 7 feet from the shoulder of the road. A completion of the work would require another operation, by which the grader would shove these rows of dirt back toward the shoulder. This had not been done. The rows of dirt were irregular, the height varying from almost nothing to about 4 or 5 inches. The space between the two rows of dirt was about 10 or 12 feet in width. The sides of the road were in practically the same condition.

Near the place of the accident, the road slopes downward toward the north. To the south of the crest of this decline, the road is comparatively level. The appellant's car was headed toward the north, and hence was on the level land. The appellee came on his motorcycle from the north, and hence came up the incline or slope. There is a rise of 38 feet in a distance of about 800 feet on this slope. There were no obstructions in the road, except the rows of dirt. Although there had been a slight rain some hours before the accident, the visibility was not affected by weather conditions at the time.

The appellee estimated the distance at which he first saw appellant's car at from 250 to 300 feet. The driver of appellant's car says that he first saw the motorcycle when it was "about 325, or maybe 340 or 350, feet" from his car. The evidence of experiments made tends to show that the parties could have seen each other at a somewhat greater distance. The two vehicles came together in a head-on collision, the motorcycle coming in contact with the bumper of the automobile at about the center of it. The force of the impact was such that the handlebar on the motorcycle was driven through the appellee's right hip, causing a severe and permanent injury.

The foregoing matters are established without practical dispute in the record.

There was evidence tending to show that, at the time of the collision, the appellants' car was on the left or west side of the road. There was also evidence that appellants' car was moving at a speed of 40 miles per hour at or about the time of the accident. There was also evidence tending to show that appellee's motorcycle changed its course from one side of the road to the other as it approached the automobile. The distance at which each vehicle could be stopped at various speeds was shown.

The foregoing general outline is sufficient for a consideration of the errors relied upon for reversal.

I. It is contended that the appellee was guilty of contributory negligence in the operation of his motorcycle, and that the court erred in refusing to sustain appellant's motion for a directed verdict on this ground.

We have all read the record on this question with great care. We are not in agreement as to whether or not the appellee was guilty of contributory negligence, as a matter of law. This being the situation, further discussion of this question becomes unnecessary, and a recital of the record would serve no useful purpose to the parties or the profession.

II. Appellants also contend that the court should have directed a verdict on the ground that it did not appear that the negligence of appellants was the proximate cause of the injury to appellee. Like the question of contributory negligence, under the record this was also a question for the jury, and the court did not err in refusing to direct a verdict for the appellants upon this ground.

III. The appellants predicate error upon the court's refusal to give a requested instruction on the subject of the law with reference to a sudden emergency confronting the driver of the automobile by the appearance of the appellee in the highway on his motorcycle. The court did not err in refusing to give the instruction as requested by the appellants. It would have been error for the court to have given said instruction in the form in which it was drawn. After purporting to state the general rule of law applicable to a sudden emergency, the requested instruction, in attempting to apply said rule to the facts of the case, would have informed the jury that the action of the appellant as outlined in said instruction "would not constitute negligence." It would have been quite proper in the case for the court to have instructed with regard to the law of sudden emergency, and made it applicable to both appellants and the appellee; but it would still have been a question of fact for the jury to determine whether, under the evidence and the law in regard to sudden emergency, the parties exercised ordinary care. It was not error to refuse the requested instruction.

IV. Appellants complain of the court's refusal to give Requested Instruction No. 9, on contributory negligence. The court did not err in refusing to give this instruction in the form in which it was presented. The court instructed the jury fully on the question of contributory negligence, and the instructions given covered the subject-matter of said requested instruction sufficiently so that there was no reversible error in the refusal of the court to give said Requested Instruction No. 9 in the form in which it was asked.

V. The court gave the jury the following instruction:

"The statutes of this state, among other things, provide as follows: 'Persons on horseback, or in vehicles, including motor vehicles, meeting each other on the public highway, shall give one half of the traveled way thereof by turning to the right.' Both the motorcycle of the plaintiff and the Chevrolet automobile of the defendant are motor vehicles, within the meaning of this statute. This statute, therefore, required both the plaintiff and the defendant Killingsworth, upon meeting upon the public highway, to yield to the other one half of the traveled way, by turning to the right; and a failure upon the part of the defendant Killingsworth to yield one half of the traveled portion of the highway to the plaintiff by turning to the right upon meeting the plaintiff would constitute negligence on his part; likewise, a failure on the part of the plaintiff to yield one half of the traveled portion of the highway to the defendant Killingsworth by turning to the right, upon meeting upon the highway, would constitute negligence on the part of the plaintiff. You are, however, instructed that there is no statute or rule of law which requires the driver of a motor vehicle at all times while traveling on a highway, outside of cities and towns, to keep to the right of the center of the highway; but this is only required when meeting others on the highway, as heretofore stated in this instruction."

Complaint is made of this instruction. The instruction cannot be approved. It has long been the rule in this state that, where a participant in an accident upon a public highway is upon the wrong side of the street or highway at the time, his presence there is prima-facie evidence of negligence, and no more. Herdman v. Zwart, 167 Iowa 500, 149

N.W. 631; Powell v. Alitz, 191 Iowa 233, 182 N.W. 236; Johnson v. Kinnan, 195 Iowa 720, 192 N.W. 863; Carlson v. Meusberger, 200 Iowa 65, 204 N.W. 432; McElhinney v. Knittle, 199 Iowa 278, 201 N.W. 586; Cuthbertson v. Hoffa, 205 Iowa 666, 216 N.W. 733. Under the well recognized rule in this state, a trial court is warranted in telling the jury that a violation of an ordinance or a statute governing said matter is prima-facie evidence of negligence; but it is erroneous to instruct a jury that, as a matter of law, it "would constitute negligence." The appellee seeks to avoid the error in this instruction on the ground that the instructions are all to be considered together, and that, when so considered, this instruction was not erroneous. We cannot sustain the appellee's contention at this point. When the instructions are read as a whole, the error in the statement of law contained in this instruction is not obviated. The jury should be told clearly, plainly, and correctly the rule of law pertaining to the so-called law of the road under the circumstances such as are presented in the case at bar, where it was contended that the accident resulted because of the claim that the appellants' automobile was on the wrong side of the road. The error was not corrected by other instructions that were given.

It is also...