Davidson v. Vast

• Decision Date: 15 June 1943
• Docket Number: 46078.
• Citation: 10 N.W.2d 12,233 Iowa 534
• Parties: DAVIDSON v. VAST et al.
• Court: Iowa Supreme Court

10 N.W.2d 12

233 Iowa 534

DAVIDSON v. VAST et al.

No. 46078.

Supreme Court of Iowa

June 15, 1943

Appeal from District Court, Buena Vista County; Fred M. Hudson Judge. [Copyrighted Material Omitted]

Herrick & Ary, of Cherokee, and Edson & Edson, of Storm Lake, for appellants.

Whitney Whitney & Stern, of Storm Lake, for appellee.

GARFIELD, Chief Justice.

A rehearing having been granted, the opinion filed on December 15, 1942 reported in 6 N.W.2d 840, is withdrawn and the following substituted therefor.

On the morning of August 1, 1941, decedent was driving a Chevrolet pickup truck south on a graveled highway which slopes gently to the south. Defendant was driving a Studebaker sedan west on an intersecting dirt highway. There is quite a steep hill about 40 rods east of the intersection, then the dirt road levels off and continues west on a slight upgrade. Just west of the intersection there is a sharp elevation to the west. There were no stop signs at the intersection.

There were trees, shrubs and weeds at the northeast corner of the intersection which obscured the view from both north and east. Southeast and northwest of the intersection were fields of corn in tassel. Visibility from the east and south was at least partly obscured because of the cornfield and the weeds at the roadside. The collision occurred in the northwest part of the intersection.

Both drivers were alone and no other person saw the collision. Defendant lived a quarter of a mile west but operated two farms east of the intersection. He was thoroughly familiar with the crossing and the lack of visibility. He considered it a dangerous intersection. Decedent lived in a different part of the same county. Several years before the collision, Davidson had driven many times on the graveled road past this intersection.

In the collision Roy B. Davidson received severe injuries from which he died early the next morning. His administrator brought this action to recover for his death. The trial resulted in a jury verdict and judgment for $7,000 from which defendant has appealed. We treat the case as if John Vast were sole defendant.

I. Defendant contends the evidence was insufficient to support any of these three charges of negligence which were submitted to the jury: 1. That defendant was driving at excessive speed and did not have his car under control. 2. That he failed to yield the right of way to decedent who was approaching from defendant's right. 3. That defendant failed to keep a proper lookout.

Defendant's own testimony clearly warranted submission of the third charge of negligence. On direct examination, defendant testified that he first looked to the north when he was six or eight feet east of the traveled portion of the graveled highway, that he saw nothing, but that he could then see north only about 40 feet. He admitted that if he had driven 3 feet further he could have seen about 300 feet north. Defendant continued into the intersection without stopping. After looking north, he says he looked south and then, when in the northwest corner of the intersection, looked north again and for the first time saw the Davidson pickup only 10 feet away. The collision followed within a fraction of a second. Defendant said he could have stopped his car within 2 or 3 feet.

Defendant testified he knew when he first looked north that he could not see traffic from that direction. When he looked the second time the collision could not be avoided. Defendant testified: "I didn't have any chance to stop then. It was too late to do anything." While defendant was not legally obligated to look to his right from any particular point, ordinary care required him to maintain a reasonably efficient lookout, to look when it would be conducive to protection, when it would "do him some good." 2 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., p. 231, § 1038, p. 241, § 1041; Smith v. Lamb, 220 Iowa 835, 263 N.W. 311; Bannister v. Illinois Cent. R. Co., 199 Iowa 657, 202 N.W. 766.

It was also proper to submit to the jury the charge that defendant was negligent in failing to yield the right of way to decedent. Under the applicable statute, Ch. 175 Acts 49th G.A., decedent, who was approaching from the right, was entitled to the right of way if the paths of the two vehicles would intersect and there was danger of collision. The jury could have found there was danger of collision.

Although not so free from doubt, we think it was also proper to submit the first charge of negligence that defendant's speed was excessive and his car not under control. Under section 5023.04, Code 1939, it was defendant's duty to have his car under control and reduce his speed to a reasonable and proper rate when approaching and traversing the intersection. Section 5023.01 required defendant to drive at a careful and prudent speed under the conditions then existing. Under our right of way statute, Ch. 175, 49th G.A., as defendant was bound to know, traffic from the north was favored over traffic from the east, and, as defendant did know, visibility was obscured and there was much more travel on the graveled road than on the east and west road. Defendant's brother testified: "As I came to that blind intersection I slowed down, just about almost to a stop. A person would have to do that to be safe."

On the morning in question defendant was returning from Alta and Storm Lake with groceries and a piece of ice he had purchased. Threshing was in progress on a farm operated by him and he was apparently preparing to feed the threshers. He thus had a motive for haste. See 5 Am.Jur. p. 848, § 623. A farm wife who observed defendant's speed at a point about 500 feet east of the intersection testified he was then traveling 40 to 50 miles an hour. Defendant apparently does not seriously challenge this woman's testimony. He said, however, that he reduced his speed, without applying his brakes, to 5 to 10 miles per hour as he approached the intersection and then continued until the impact at a speed of 7 1/2 miles per hour; that when he observed decedent 10 feet away, the pickup was traveling at 50 miles per hour and its front end struck the right side of defendant's sedan.

The jury was not bound to accept defendant's version as a verity. Cerny v. Secor, 211 Iowa 1232, 1237, 234 N.W. 193, 195; Hawkins v. Burton, 225 Iowa 707, 713, 281 N.W. 342; Fraser v. Brannigan, 228 Iowa 572, 579, 293 N.W. 50. The entire record warranted a finding that the facts were not as testified by defendant. A number of photographs of the two vehicles were received in evidence and are before us. They clearly show that the damage to decedent's pickup was not to the front end but to the left side, just ahead of the seat. The front end of the Studebaker was badly wrecked. These exhibits are persuasive evidence that the impact, contrary to defendant's version, was between the front end of defendant's car and the left side of the pickup. They also constitute substantial evidence that the Vast car was being driven much faster than defendant testified.

Other physical facts are that the right front of the frame of the Vast car and the heavy cross member across the front of the frame were bent down and back under the body. The left frame of the pickup was indented and sprung toward the center, "the rear wheels were probably a foot or more out of line with the front end," the motor was torn loose from its mountings, "the floorboard was squeezed sort of sideways to make it look as an accordian." Defendant received a deep gash on each knee. Both cars came to rest in the ditch at the south side of the dirt road west of the intersection. The cars were of about the same weight. The jury could have found that defendant's car was a few feet west of the fence line on the west side of the graveled highway which was 66 feet wide. It was on its side, the wheels facing west and the radiator north. The Davidson car was headed south, lying on its right side, its wheels to the east. It was west of defendant's car, with a space of 15 feet between the two.

At the time of the collision there was a 300 pound piece of ice in the trunk of the Vast sedan. The lid to the trunk was down but not locked. The ice got out of the trunk as a result of the impact and was found up the hill in the center of the dirt road, the jury could find, about 74 feet nearly straight west of the point of impact.

Defendant testified: "I didn't have time to wait, because I looked to the south. *** I didn't stop because it takes too long to get started again." A neighbor testified that defendant told him the day of the collision, "he looked to the north and looked to the south and everything turned black." Another neighbor testified that defendant told him the day following the collision "it happened before he knew it. Just that quick *** Well, he says he didn't see nothing, if I can remember right." Another neighbor testified that Vast said the following day, "it happened so fast he didn't know what happened." Defendant as a witness did not deny these conversations. This evidence is inconsistent with defendant's testimony about the collision.

Under all the circumstances, especially the obstructed view at the intersection, known to defendant, the failure of defendant to look at a place where he could effectively observe and the fact that decedent was approaching from the right, we think the issue of speed and control of defendant's car was for the jury. It is difficult to isolate speed from other elements. The propriety of any rate of speed depends largely upon all the surrounding facts and circumstances, including the vigilance of the driver and his care in matters other than speed. Jarvis v. Stone, 216 Iowa 27, 33, 247 N.W. 393. We are committed to the rule...