Dickman v. Truck Transport, Inc., 56701

• Decision Date: 18 December 1974
• Docket Number: No. 56701,56701
• Citation: 224 N.W.2d 459
• Parties: Frederick H. DICKMAN, Appellant, v. TRUCK TRANSPORT, INC., and Virgil Thompson, Appellees.
• Court: Iowa Supreme Court

Page 459

224 N.W.2d 459

Frederick H. DICKMAN, Appellant, v. TRUCK TRANSPORT, INC., and Virgil Thompson, Appellees.

No. 56701.

Supreme Court of Iowa.

Dec. 18, 1974.

Johnson, Oakley & Pfeffer, Clinton, for appellant.

Shaff, Farwell & Senneff, Clinton, for appellees.

Heard before MOORE, C.J., and MASON, RAWLINGS, UHLENHOPP and REYNOLDSON, JJ.

MASON, Justice.

Frederick Dickman instituted this law action to recover for personal injuries alleged to have been sustained as a result of a motor vehicle accident involving four automobiles and a 1965 GMC three-axle diesel and tanker type trailer. The tractor owned by defendant, Virgil Thompson, was being driven by him under lease to defendant, Truck Transport Inc., the owner of the trailer. Plaintiff was an occupant of one of the cars. The accident occurred shortly after 7 p.m. May 18, 1967, during a severe dust storm preceding heavy rains.

Thompson was traveling north on U.S. Highway 61 outside of the town of Welton toward Maquoketa in Clinton County. As Thompson approached the scene of the accident he was traveling 20 to 25 miles per hour. He was being followed by a 1958 Ford driven by Wallace Workman.

The road at the scene inclined slightly and had narrow, grass covered shoulders approximately four feet in width.

As defendant approached the scene, his visibility was reduced to virtually zero due to a sudden, unforewarned dust cloud. He stopped the tanker slowly in order to warn Workman. By the time the truck was stopped, defendant could see virtually nothing but stated the Ford stopped approximately fifty feet behind his truck. Defendant could not ascertain on what portion of the road his truck was parked, although he later discovered he was completely within his own lane of travel.

Defendant stated he was waiting in his truck for the visibility to improve when he felt the first impact. This was apparently when a Buick Riviera being driven north by Richard Hopkins struck the left rear portion of the tanker. The Riviera was most likely the first car to collide with the tanker as it had passed the Malamphy car earlier.

A short time later a car being driven south by Maurice Round collided with the left front end of the Riviera.

Finally, a car driven north by Max Malamphy apparently struck the Workman Ford from the rear pushing it into the rear of the tanker. Plaintiff was a passenger in the Malamphy car.

Defendant stated he could not see to move his truck, and that in any event did not dare to after the first impact for fear someone might be lying under the truck's wheels.

Plaintiff and three other men had finished golfing in Davenport and were driving home at the time of the accident. Plaintiff received facial injury, a broken arm and rib injuries.

All witnesses agreed that although they knew a storm was brewing, the dust storm came up suddenly with no forewarning and obliterated visibility. There was a plowed field to the west of the highway from which the dust apparently originated.

No one saw the truck lights save for Mr. and Mrs. Round and Mr. Workman. Defendant testified he turned on his lights somewhere around Welton and that when he began to stop switched on his emergency flashers. None of these precautions presumably would have done any good due, at the accident scene, to the intensity of the dust storm.

Plaintiff alleged in his petition seven particulars in which he asserted defendants were negligent. Six of these specifications dealt with alleged violations of statutory rules of the road, the other was based on the common law duty to exercise due care. In a separate paragraph he alleged defendants' negligence in one or more of the respects specified was the proximate cause of his injuries.

Defendants moved for leave to bring in new parties by way of cross-petition alleging that if they were held liable on plaintiff's claim Max Malamphy, Wallace Workman and R. V. Hopkins are liable to indemnify defendants and defendants will be entitled to judgment over against each of them as shown in the cross-petition attached to the motion. In the cross-petition defendants asserted various specifications of negligence against each defendant to the cross-petition as a proximate cause of plaintiff's injuries. The court granted leave to bring in the new parties on cross-petition. However, defendants to the cross-petition joined by plaintiff, Frederick, H. Dickman, later moved for severance and separate trial of the issues raised by defendants' cross-petition. The motion was granted.

Defendants in answer admitted ownership of the tractor and trailer and other preliminary matters. They denied each specification of negligence and in a separate paragraph denied any negligence of theirs was a proximate cause of plaintiff's injury. In a separate division defendants alleged as an affirmative defense that an unprecedented wind storm, coupled with dust, of unusual violence that occurred in the area of the collision which completely impaired the visibility of the drivers of all vehicles involved in the collision or collisions constituted an act of God that was the sole proximate cause of plaintiff's injuries. In an amendment defendants alleged as a separate division the doctrine of sudden emergency as an affirmative defense.

Trial to a jury resulted in a defendants' verdict.

Plaintiff's motion for new trial was overruled and he appeals from judgment entered on the jury's verdict.

Plaintiff sets out five issues he asks that we review. Four attack the court's instructions, one asserts he was denied a fair trial.

Before considering these issues it is important in order to understand the problems presented by this appeal to have in mind the circumstances which existed at the time the court was called upon to instruct the jury in light of the pleadings of the parties and the evidence received.

The court submitted three of the seven specifications of negligence alleged by plaintiff as a theory of recovery. All dealt with alleged violations of statutes regulating the law of the road. Two instructions dealt with the duties of a motorist in stopping on the traveled way as set forth in section 321.354 and the third concerned defendant's duty to carry and display flares, reflectors or other signals as directed by section 321.447, The Code.

Examination of the record discloses substantial evidence which would not only justify the trial court's submission of the questions of defendants' violation of these statutes but would also support a finding defendants were negligent.

Since the decision in Kisling v. Thierman, 214 Iowa 911, 915, 243 N.W. 552, 554 in 1932, this court has consistently held that with the exception of violation of section 321.298 requiring vehicles meeting each other to give half the traveled way by turning to the right, which constitutes merely prima facie negligence, violation without legal excuse of other statutes regulating the law of the road is negligence per se or as a matter of law. City of Cedar Rapids v. Moses, 223 N.W.2d 263, 268 (Iowa 1974).

Having generated a jury question as to defendants' negligence as a matter of law plaintiff then had the burden to prove direct causal connection between negligence of defendants in one or more of the respects submitted and the happening of the collision and the sustaining of his injuries. Defendants in answer had denied plaintiff's allegation in regard to proximate cause. Under such denial defendant might refute proof of this essential by offering evidence that negligence of a third party or parties was the sole proximate cause of Dickman's injuries. Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 642 (Iowa 1969).

In this connection defendants offered evidence seeking to establish that either the negligence of Hopkins or Malamphy individually or in concurrence was the sole proximate cause of plaintiff's injuries. The question of proximate cause is generally for the jury save only in exceptional cases.

In order for defendants to avoid a holding they were negligent as a matter of law in the event of a jury's finding defendants had violated these statutes they were required to offer proof excusing their failure to observe the legal standards set forth in the two statutes mentioned. Kisling v. Thierman, 214 Iowa at 915, 243 N.W. at 554; Wagaman v. Ryan, 258 Iowa 1352, 1359, 142 N.W.2d 413, 417.

Defendants also seek to avoid the rule announced in Kisling by asserting as an affirmative defense the dust and wind storm at the time and place of the accident constituted an act of God which was the sole proximate cause of plaintiff's injuries. In another division defendants asserted as a legal excuse for violation of these statutes the theory of sudden emergency.

With this background we consider such of the issues advanced by plaintiff as are essential to a determination of this appeal.

I. The first question raised is whether the court erred in giving instruction 11 over plaintiff's objection.

In instruction 11 the jury was told:

'I suggest that you first give consideration to the affirmative plea of Act of God made upon the part of the defendants. The burden is upon the defendants to establish such affirmative defense by the preponderance of the evidence, and if you find that they have done so, you need go no further with your deliberations insofar as awarding damages to the plaintiff is concerned.'

Plaintiff made timely objection instruction 11 unduly emphasized defendants' theory of nonliability and invaded the jury's deliberative process by directing the order of consideration of issues, implying the jury could save time by deciding on that issue first.

Defendants counter that when one reads instruction 11 with all other instructions it does not unduly emphasize defendants' theory of defense. They point out instruction 2 charges the jury not to consider the order in which the instructions were given; instruction 10 1/2 allows plaintiff to recover if the jury found the Act of God and defendan...