Cunningham v. Court

Decision Date03 April 1957
Docket NumberNo. 49146,49146
Citation248 Iowa 654,82 N.W.2d 292
PartiesMichael CUNNINGHAM, Appellant, v. Loren Edward COURT, Appellee.
CourtIowa Supreme Court

F. H. Becker, Dubuque, and E. L. Gross, Strawberry Point, for appellant.

Donohue & Wilkins, New Hampton, for appellee.

LARSON, Justice.

This law action for damages grows out of a collision in the daytime at an intersection of Highway 3 and a gravel crossroad about five miles west of Strawberry Point, Iowa, between plaintiff's pickup truck and defendant-counterclaimant's Chevrolet automobile. There was a jury verdict and judgment for the defendant with no damages, and plaintiff appeals.

Both plaintiff and defendant were traveling east on Highway 3, the defendant some distance behind the plaintiff as they approached an intersection of said highway, with the gravel road running north and south. The pavement on Highway 3 is 18 feet wide, and there are rather wide shoulders on each side thereof up to the intersection some 20 feet wide. The north gravel road was approximately 30 feet in width. There is a descent or dip between 450 and 500 feet to the west of the intersection on Highway 3, and there was some dispute as to whether it was deep enough to hide an approaching vehicle.

Plaintiff testified that as he topped that rise going east at 40 miles per hour, he started to let up on his foot feed, turned his window down, and put out his arm. He had seen defendant when he was about 1,050 feet from the intersection and estimated that at that time defendant was some four-tenths of a mile behind him. When he was about 100 feet from the intersection, going 25 miles per hour, he looked back and saw the defendant's car just coming over the rise some 450 feet to his rear. He believed he had time to turn, applied his foot brake, slowed to 15 miles per hour when about 20 feet from the intersection, and made the left turn into the north gravel road. As he was leaving the left side of the pavement he was struck a glancing blow by defendant's car just behind the left cab door, and his truck was driven off the road and some 110 feet into and adjoining field on his right. Defendant's car swung around after the impact and landed against a telephone pole some 47 feet east of the point of impact. Plaintiff's truck was about 17 1/2 feet long.

A highway patrolman on the scene shortly thereafter made the measurement and located the point of impact as 6 or 8 feet north of the north edge of the pavement near the center of the gravel road. He testified he found and measured a skid mark from a point 4 1/2 feet or midway from the center line to the north edge of the pavement, extending northeasterly 96 feet to the pavement's edge, thence in the gravel shoulder 28 feet northeasterly to the point of impact. Only one tire mark showed, and he did not know whether it was the right or left wheel that made it. He testified the day was overcast, but visibility was unlimited. The road was normal and dry and the air crisp and chilly.

The defendant testified that as he came over the rise west of the intersection at about 55 miles per hour, he speeded up to 65 or 70 miles per hour, driving in his right or south lane. When he was about 135 feet from plaintiff's truck, also in the right lane, he saw plaintiff suddenly slow down and start a left turn. He said he did not observe any lights or signals given by the operator of the trunk, and that he usually watched for them. He did not at any time see the rear brake light on the truck go on, and did not observe any hand extended from the left window of that truck. He testified that when he saw plaintiff turning he pulled to the left and put his 'feet on the brake just as hard as I could.' He knew the shoulder was soft and believed his best chance was to try to turn with the plaintiff, and although he knew they would collide, he felt his best chance to save himself was to avoid a direct hit. Although it is clear that had he turned slightly to the right or kept in his right lane of traffic no collision would have occurred, he contends it was necessarily an emergency decision and that he rightfully thought it the least dangerous maneuver. He stated he was not attempting to pass defendant at that time or place.

The patrolman testified he examined the vehicles when he arrived, found plaintiff's left window down, and that plaintiff's taillight was activated when his fellow officer pressed on the foot brake pedal.

Both parties were seriously injured and were taken to a hospital in Manchester Iowa. They suffered more or less permanent injuries, but that issue is not involved in this appeal.

The foregoing is a fair statement of the record.

Plaintiff's petition predicated his claim in Division I upon res ipsa loquitur, and in Division II upon specifications of negligence. Defendant's answer denied plaintiff's allegations and pleaded four specific acts of negligence upon plaintiff's part. These were denied by plaintiff. Defendant also filed a counterclaim alleging three of the same specifications of negligence contained in his answer, and demanded affirmative relief. The jury found for the defendant without damages, and the trial court overruled plaintiff's motion for a new trial. Plaintiff appealed stating the issues to be, whether defendant was negligent as a matter of law, whether plaintiff was free from any negligence, or whether both were negligent, and presents the following questions by the appeal:

(1) The correctness of the court's refusal to direct a verdict on the counterclaim.

(2) The propriety of certain instructions, namely No. 16 and No. 18, relating to a sudden emergency.

(3) The correctness of certain court rulings during the trial.

I. It is of course error for the trial court to submit to the jury a specification of negligence where there is no evidence introduced thereon, and in most instances it is prejudicial error. Isaacs v. Bruce, 218 Iowa 759, 254 N.W. 57; Baker v. Zimmerman, 179 Iowa 272, 278, 161 N.W. 479, 481. In the Baker case the exception is stated that 'where by special interrogatory or otherwise the issue appears to have been found in favor of the party complaining, all inference of prejudice is avoided.'

Here plaintiff contends there was no evidence, or at most only a scintilla of evidence to support the defendant's specification of plaintiff's negligence, first as defensive in plaintiff's case, and second in defendant's counterclaim. If there were no evidence to justify the submitting of the specifications of negligence in defendant's answer, such error might well be prejudicial error, for that error would not be cured unless the jury found for him, which it did not. However, the error in such a submission of the specifications in defendant's counterclaim would be nonprejudicial if, as in the case before us, the jury found against him in that action. Baker v. Zimmerman, supra; Fagen Elevator v. Pfiester, 244 Iowa 633, 56 N.W.2d 577, and cases cited; Slabaugh v. Eldon Miller, Inc., 244 Iowa 29, 38, 55 N.W.2d 528, 533; Davidson v. Vast, 233 Iowa 534, 10 N.W.2d 12, and others.

If there is substantial evidence to sustain any specification submitted by the court, then the trial court would be not only justified in its submission, but would be required to submit the fact issue to the jury. In plaintiff's motion to direct a verdict for him and against defendant on his counterclaim, plaintiff contends there is no evidence in the record which sustains the specifications (1) that at or about the time plaintiff reached the intersecting county highway he suddenly decreased his speed without giving an appropriate signal; (2) that upon reaching said intersection the plaintiff changed the direct course of his vehicle without giving a proper signal; and (3) that the plaintiff failed to keep a proper lookout to his rear. The trial court believed there was sufficient evidence on each specification of negligence to submit the issue to the jury, and while it must be conceded defendant's testimony on the first two is not strong, yet we feel under the testimony previously set out it was sufficient to let a jury pass upon and determine the facts.

Plaintiff contends the statement by defendant that he did not see or observe any signal given by plaintiff as a warning that he was slowing down or intended to make a left turn, was not sufficient evidence to raise the issue as to whether plaintiff did give such appropriate, timely and adequate signals as by law required. See Code sections 321.316, 321.317, and 321.318, Code of 1954, I.C.A. They cite Isaacs v. Bruce, supra, 218 Iowa 759, 254 N.W. 57, wherein the testimony of a passenger in the defendant's car that he did not see or hear the driver give a signal, was held insufficient evidence of negligence to permit the court to submit that issue to the jury. The evidence here is stronger, for defendant, in addition to saying he observed no signals, said, 'when I saw him there was no indication that he was going to turn when I came upon him,' and 'I did not at any time see the rear brake-light on the truck go on. * * * I usually watch for lights to turn.' The only fair inference, if such testimony is not more, is that no signals were given by the plaintiff, which clearly is in conflict with the statements of the plaintiff that they were given. Such conflict being as to a matter of fact, it was for the jury to determine, and we believe these specifications of negligence were sufficiently supported for the jury's consideration. Frideres v. Lowden, 235 Iowa 640, 645, 17 N.W.2d 396.

As to specification on lookout, while plaintiff said he looked twice, once at 1,050 feet and again at about 25 feet, proper lookout, either frontward or backward, means more than just a look. Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 199, 61 N.W.2d 696; Devore v. Schaffer, 245 Iowa 1017, 1024, 65 N.W.2d 553; Jesse v. Wemer & Wemer Co., Iowa, 82 N.W.2d 82. It is also not enough to be merely aware of...

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