Doser v. Interstate Power Co., 53671

• Decision Date: 13 January 1970
• Docket Number: No. 53671,53671
• Citation: 173 N.W.2d 556
• Parties: Mary D. DOSER, Appellee-Cross Appellant, v. INTERSTATE POWER COMPANY, a corporation, Appellant-Cross Appellee.
• Court: Iowa Supreme Court

Page 556

173 N.W.2d 556

Mary D. DOSER, Appellee-Cross Appellant, v. INTERSTATE POWER COMPANY, a corporation, Appellant-Cross Appellee.

No. 53671.

Supreme Court of Iowa.

Jan. 13, 1970.

O'Connor, Thomas, Wright, Hammer & Bertsch, Dubuque, for appellant-cross appellee.

Reynolds, Kenline, Roedell, Breitbach & McCarthy, Dubuque, for appellee-cross appellant.

BECKER, Justice.

This is a personal injury action growing out of a collision between an automobile and a bus which was operated by Interstate Power Company as a common carrier. The case was tried to a jury which returned a verdict for plaintiff. Defendant's motion for judgment notwithstanding the verdict was overruled but its motion for a new trial was granted. Both sides appeal. We affirm on both appeals.

Defendant Interstate's appeal urges two grounds. First, it contends a judgment n.o.v. should have been granted because the evidence showed as a matter of law that the sole proximate cause of the collision was the negligence of Domitilla Cerjan, operator of the other vehicle, and the negligence of Interstate, if any, was not proximate. Second, it contends the motion for a new trial should have been granted because the court failed to instruct on defendant's defense of sole proximate cause despite defendant's request for such an instruction.

Plaintiff cross-appeals claiming the court should not have granted a new trial but should have entered judgment based on the verdict.

I. In reviewing the trial court's ruling on motion for judgment notwithstanding the verdict, we consider the evidence in the light most favorable to plaintiff. Jackson v. Brown (Iowa), 164 N.W.2d 824.

Defendant operates the public bus system in Dubuque, Iowa. Shortly prior to 4:30 P.M., January 23, 1967, plaintiff boarded one of defendant's buses, paid her fare and took her seat. As the bus proceeded east on Clarke Drive it approached Grandview Avenue, an intersecting street. The speed of the bus as it approached the intersection was variously estimated from 25 to 30 miles per hour (plaintiff's witnesses), to 15 to 20 miles per hour (defendant's bus driver). Plaintiff's witnesses testified the bus did not slow down at any time prior to application of the brakes immediately before impact.

As the bus approached the intersection, the Cerjan vehicle approached the intersection from the opposite direction. The driver and at least three passengers saw the approaching car at about the same time. All witnesses agree the Cerjan car turned directly in front of the bus. The driver applied his brakes and laid down six feet of skid marks, apparently about half of those marks occurred after impact.

Immediately prior to the collision, Mr. Voss, a passenger, saw the accident developing and had time to brace himself. A young boy jumped out of his seat before the brakes were applied but 'couldn't hold on' when the brakes were applied. Plaintiff said she saw the car turning in front of the bus and attempted to grab something but it was too late. She was thrown out of her seat and injured. The accident developed very quickly, two or three seconds at most. The left front of the bus collided with the right front of the Cerjan vehicle.

Mr. Voss testified as to the type of intersection involved: '* * * As the bus approached the intersection of North Grandview and Clarke Drive, there were cars going both ways. It was quite busy at that time. Yes, there also were pedestrians in the area, people from Senior High School waiting for the bus, and I think it was around 3:30 p.m. In regard to lighting conditions, it was light, it wasn't dark. They didn't need headlights or anything like that. The surface of the road was dry.' The bus driver testified he was familiar with the intersection. The exhibits show the intersection is in the close vicinity of Senior High School and has a posted 25 mile speed limit.

II. The court submitted failure to keep a proper lookout, failure to have the bus under control and excessive speed as issues of negligence. Defendant argues the accident was solely due to the Cerjan car improperly turning left in front of the bus. The collision would have occurred regardless of the speed of the bus. It cites cases where this court has found excessive speed had no causal connection with the accident. Mowrey v. Schulz, 230 Iowa 102, 296 N.W. 822 (1941); Pettijohn v. Weede, 209 Iowa 902, 227 N.W. 824 (1929).

We find Barnard v. Cedar Rapids City Cab Co., 257 Iowa 734, 133 N.W.2d 884, and Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 1139, 49 N.W.2d 501, to be more closely in point both from the standpoint of the facts and the principles involved. In Rozmajzl v. Northland Greyhound Lines at pages 1139--1140 of 242 Iowa, at page 504 of 49 N.W.2d, we said: 'A carrier of passengers for hire must exercise more than ordinary diligence for their protection. Its duty stops just short of insuring their safety. It is bound to protect its passengers as far as human care and foresight will go and is liable for slight negligence. (cases cited). See also 13 C.J.S. Carriers section 678a; 10 Am.Jur., Carriers, section 1246; Annotation 69 A.L.R. 980. '* * * the high degree of care must be exercised in Foreseeing, as well as in Guarding against, danger.' Murray case, supra.

'Plaintiff made a prima facie case by showing she was injured while a passenger on the bus by a collision between the bus and the automobile. This cast upon defendants the burden to show their freedom from negligence in causing the collision. Plaintiff was not bound to prove any particular act of negligence by defendants. (cases cited).

'The authorities make it plain it is usually a question for the jury whether such a prima facie case has been met. We do not think defendants succeeded in rebutting the prima facie case here so conclusively that they were entitled to a directed verdict.'

In Wilson v. Jefferson Transportation Company, Iowa, 163 N.W.2d 367, 371, we cited Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47, 51--52: "The true rule is that the statutory right of way is not a guarantee of safety, but that the driver on the protected road must use reasonable care under the existing circumstances for his own safety and that of others. Likewise, in connection with the duty to keep a proper lookout, we think it is his duty to make reasonable observation of all surrounding circumstances, including intersections and other traffic which may be in fair view on intersecting roads, and to use such care as an ordinarily prudent man would do in the light of everything disclosed by such observations."

The question of proximate cause is usually to be decided by the jury. Rules of Civil Procedure, No. 344(f)(10). We have recently reviewed the controlling principles in relation to causation in Adams v. Deur, (Iowa) 173 N.W.2d 100, (opinion filed December 9, 1969) and Federated Mutual Hardware Ins. Co. v. Dunkelberger, (Iowa) 172 N.W.2d 137, ...