Fagen Elevator v. Pfiester

Decision Date13 January 1953
Docket NumberNo. 48158,48158
Citation56 N.W.2d 577,244 Iowa 633
PartiesFAGEN ELEVATOR v. PFIESTER.
CourtIowa Supreme Court

Edwin Willcockson and F. M. Beatty, both of Sigourney, for appellant.

Livingston & Day, and Edmund D. Morrison, Jr., all of Washington, for appellee.

GARFIELD, Justice.

This is a law action for damages growing out of a collision in daytime at the junction of paved primary highways between plaintiff's truck and defendant-counterclaimant's automobile. There was a jury verdict and judgment for plaintiff and defendant-counterclaimant appeals.

Plaintiff's Chevrolet truck loaded with 3 1/2 tons of feed was traveling east on highway 92. Defendant was driving his Frazier sedan south on highway 21 toward its junction with 92. No. 21 from the north forms a paved Y as it joins 92, to facilitate turning east or west on 92 from 21. Top of the Y is to the south along the north edge of 92. Highway 21 does not extend south of its junction with 92 but a gravel highway does, with its center line about 28 feet east of the center line of No. 21. There is a stop sign facing north on the west side of 21 about 8 feet south of where the pavement begins to widen at the north end of the Y.

It is in dispute whether defendant stopped at this stop sign which is about 92 feet north of the south edge of the pavement on No. 92. That pavement is 18 feet wide exclusive of the Y. The Grovier pickup truck was parked facing south in about the center of the Y and plaintiff's witness Rockwell was standing at the east (left) side of the pickup. Defendant drove south through the Y on the east side of the pickup, intending to cross 92 and enter the gravel highway running south.

Defendant testifies he stopped at the stop sign and after he passed the Grovier pickup, when he was within 8 or 10 feet of the pavement on 92, he saw plaintiff's truck coming from the west, thought he had time to cross 92 and drove ahead. Just after he had crossed the pavement, the left front of plaintiff's truck collided with the right rear door of defendant's car on the gravel about 6 feet south of the pavement. Defendant was seriously and permanently injured and his automobile was badly wrecked.

Plaintiff's action sought recovery for damage to its truck on the ground, insofar as submitted to the jury, the collision was caused by defendant's failure to (1) stop at the stop sign and (2) yield the right of way to the truck. Defendant's counterclaim in two divisions asserted the collision was caused by negligence of plaintiff's truck driver in different respects, one of which was submitted to the jury. There was a verdict and judgment for plaintiff for $653. Defendant's motion for new trial was overruled and he has appealed. We think it desirable to consider the errors assigned in a little different order than that presented in the briefs.

I. The first division of defendant's counterclaim alleged the collision was caused by negligence of plaintiff's driver Saltzman in failing to have the truck under control and to reduce its speed to a reasonable and proper rate when approaching and traversing the intersection. Clearly these charges are based on claimed violation of section 321.288, subd. 3, Code 1950, I.C.A. Defendant also made other allegations of negligence against plaintiff. The court refused to submit to the jury the above charges of failure of control and reduction of speed and such refusal is assigned as error.

Defendant also requested the court to instruct the jury that one of his contentions was that plaintiff's driver was negligent in not having his truck under control and reducing its speed to a reasonable and proper rate when approaching and traversing the intersection. These requests also contained the substance of Code section 321.288, subd. 3, I.C.A., as to the duty of one approaching and traversing an intersection to have his vehicle under control and reduce its speed to a reasonable and proper rate. The familiar statement substantially as found in Arenson v. Butterworth, 243 Iowa ----, 54 N.W.2d 557, 561, and citations, as to when a motor vehicle is under control was included in the requested instructions. The refusal of these requests is also assigned as error.

The second division of defendant's counterclaim sought recovery from plaintiff on the theory of last clear chance. The court refused to submit this claim to the jury and such refusal is the first error assigned and argued.

In our opinion the above rulings were not prejudicial to defendant. The issues the court refused to submit to the jury all pertained to defendant's right to recover on his counterclaim. The verdict for plaintiff foreclosed consideration of the counterclaim. The jury was instructed not to consider the counterclaim if it found for plaintiff on its claim. No objection was taken to this instruction. It was therefore the law of the case. Nichols v. Kirchner, 241 Iowa 99, 105, 40 N.W.2d 13, 17, and citations; Larimer v. Platte, 243 Iowa ----, 53 N.W.2d 262, 264, and citations.

The verdict for plaintiff necessarily includes the findings defendant's negligence was the proximate cause of the collision and plaintiff's driver was free from negligence which caused or contributed directly thereto. Such findings are fatal to defendant's right to recover on either division of his counterclaim. There can be no question of this as to the first division. Even though defendant's contributory negligence would not prevent his recovery from plaintiff on the last clear chance theory asserted in the second division, freedom from negligence of plaintiff's driver which caused or contributed to the collision would clearly do so.

Harriman v. Roberts, 211 Iowa 1372, 1375, 1376, 235 N.W. 751, holds the erroneous striking of a counterclaim and refusal to submit it to the jury in an automobile collision case was without prejudice where the jury found for plaintiff on his claim. Davidson v. Vast, 233 Iowa 534, 544, 545, 10 N.W.2d 12, 18, is a similar decision. It cites Harriman v. Roberts, supra, and precedents from other states.

Refusal in such a case as this to submit one or more charges of negligence in a counterclaim where the jury found for plaintiff on his claim is held without prejudice in Smith v. Pine, 234 Iowa 256, 268, 12 N.W.2d 236, 243; Beck v. Dubishar, 240 Iowa 267, 271, 36 N.W.2d 438, 439, 440; Slabaugh v. Eldon Miller, Inc., Iowa, 55 N.W.2d 528, 533.

See also Rubio Savings Bank v. Acme Farm Products Co., 240 Iowa 547, 560, 37 N.W.2d 16, 23, 9 A.L.R.2d 459; Dosland v. Preferred Risk Mutual Ins. Co., 242 Iowa 1220, 1229, 49 N.W.2d 823, 828, which hold error in instructions upon a counterclaim is without prejudice where the verdict on plaintiff's claim is based on findings which would bar recovery on the counterclaim.

II. In his reply brief defendant apparently seeks to avoid the effect of the authorities just cited, as to the refusal to give his requested instructions above referred to, by contending such instructions, at least in part, bear upon the issue of freedom of plaintiff's driver from contributory negligence. This contention appears not to have been made in the trial court and seems to be an attempt by defendant to 'mend his hold.'

The requests do not mention the issue of freedom of plaintiff's driver from contributory negligence and there is no indication they were designed to deal with it or that the trial court so understood. Nor do defendant's exceptions in the trial court to the refusal to give these requests raise the point now urged. And defendant took no exception to the instructions given on freedom of plaintiff's driver from contributory negligence. Our conclusion at this point finds support in Slabaugh v. Eldon Miller, Inc., supra, Iowa, 55 N.W.2d 528, 533 III. Plaintiff's driver Saltzman testified that when he first saw defendant's car he reduced the speed of the truck from about 40 to 35 miles per hour, the car was 5 or 10 feet north of the pavement on No. 92 when he first realized defendant was not going to yield the right of way, he then slammed on the truck brakes and started to pull off on the south shoulder. Defendant brought out on cross-examination of Saltzman that he did not reduce speed of the truck below 35 miles per hour until the automobile was within 5 or 10 feet of No. 92. The witness was then asked, 'Could have, couldn't you?' His answer, 'Yes I could have,' was stricken on plaintiff's motion as irrelevant and immaterial. The ruling is assigned as error.

We think the answer should not have been stricken. No objection was made to the question until after it was answered and no excuse was given for the delay in objecting. See Kuiken v. Garrett, 243 Iowa ----, 51 N.W.2d 149, 160, and citations. Clearly the answer was neither irrelevant nor immaterial. Nor was it objectionable on any ground now suggested. However, it appears defendant suffered little if any prejudice from the ruling and it is insufficient basis for reversal.

As above indicated, it was clearly brought out by Saltzman's testimony that speed of the truck was not reduced below 35 miles per hour until defendant's car was within 5 or 10 feet of the paved slab on 92. It was not claimed Saltzman could not have reduced his speed during that interval. It is obvious he could have done so. The stricken answer thus merely brought out an obvious fact.

Further, Saltzman had testified in effect he could have brought the truck to a stop during the interval in question within 125 to 150 feet. He also said in substance and on cross-examination that when he did apply his brakes speed of the truck was effectively reduced. So the substance of the stricken answer appears by other testimony of this witness. See Pond v. Anderson, 241 Iowa 1038, 1045, 1046, 44 N.W.2d 372, 377; McKinney v. Clark Brown Co., 232 Iowa 1235, 7 N.W.2d 798; Brown v. Sioux City & Pac. Ry. Co., 94 Iowa 309, 310, 62 N.W. 737.

IV. Instruction 14 told the jury if they found plai...

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