Ellis v. Bruce

• Decision Date: 12 December 1933
• Docket Number: No. 42200.,42200.
• Citation: 252 N.W. 101,217 Iowa 258
• Parties: ELLIS v. BRUCE (two cases).
• Court: Iowa Supreme Court

217 Iowa 258

252 N.W. 101

ELLIS

v.BRUCE (two cases).

No. 42200.

Supreme Court of Iowa.

Dec. 12, 1933.

Appeal from District Court, Cerro Gordo County; Joseph J. Clark, Judge.

Action at law to recover damages resulting from the collision of plaintiff's automobile with the defendant's truck. Verdict and judgment for the plaintiff, and the defendant appeals.

Reversed.

See, also, 215 Iowa, 308, 245 N. W. 320.Senneff, Bliss & Senneff, of Mason City, and Miller, Miller & Miller, of Des Moines, for appellant.

Burt J. Thompson and Dudley Weible, both of Forest City, and Thomas & Loth, of Fort Dodge, for appellees.

STEVENS, Justice.

The accident out of which this controversy arose occurred on a public highway a short distance east of the Mason City Country Club about 10:30 o'clock on the evening of December 24, 1931. The fact situation is of the utmost importance, and we deem it necessary, therefore, that a full statement and analysis of the material evidence be made.

The place of the accident was a short distance west of the intersection of a street, or highway, extending north and south, at or near the corporate limits of Mason City. Both the truck and the automobile were traveling eastward. The driver of the truck intended to turn to the left at the above intersection and proceed northward. Observing the approach of an automobile from the rear, the driver of the truck turned the right side thereof onto the shoulder, so that only about one-half of it was off the pavement. The truck at the time of the accident was moving at from five to ten miles per hour. The automobile of appellee was equipped with headlights, and was traveling at a speed of from forty to forty-five miles per hour. The weather was good and the evening was clear. As the automobile approached the truck, the rear of which was unlighted, one of the occupants of the rear seat observed the truck and called out to the driver to look out. The driver then saw the truck, and immediately turned the automobile to the left. Failing to clear the obstruction, the automobile collided with the left rear corner of the truck. The driver of the truck testified that the impact forced the truck, which weighed about 4,000 pounds, forward a distance of thirty or forty feet. There was nothing in the highway or in the vicinity to divert the attention of the driver of the automobile. The vehicles were yet some distance from the intersection with the street or highway, and there was nothing in the nearness of the approach thereto to in any sense constitute a diverting circumstance. The presence of some approaching motor vehicles from the east is noted in the testimony, but they were distant from several hundred feet to a quarter of a mile beyond the intersection. The testimony is uncertain as to whether there was a street light at the intersection above referred to or not. The testimony of all the witnesses is singularly candid and frank.

It is argued that the truck was the color of the pavement; that it was spattered with mud, and not reasonably discernible to the driver of the automobile. The driver of the automobile testified that he was looking forward observing the parallel black lines in the highway, and that he was on his proper side of the pavement.

There is complaint of numerous of the court's instructions, which, in view of the conclusion reached herein, need not be considered. The case falls squarely within the rule announced in Lindquist v. Thierman (Iowa) 248 N. W. 504. We deem it, therefore, unnecessary to enlarge upon what is there said or to repeat the reasoning adopted. This case is controlling.

[1][2][3] It is provided by section 5029, Code 1931, that: “* * * No person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.” The legislative intent is in this instance made perfectly clear by the language of the statute. The failure to observe it constitutes negligence. A positive duty is thereby enjoined upon the driver of every motor vehicle upon the public highways of this state. The question in this case is not one of the visibility of the truck nor of the reasonable and ordinary care of the driver of the automobile. The latter was bound to drive at a speed not greater than would enable him to stop the same within the assured clear distance ahead. The assured clear distance ahead was within the radius of the lights of his automobile, unless the truck was otherwise observable. The failure of the owner of the truck to have it...