Falt v. Krug

• Decision Date: 15 June 1948
• Docket Number: 47117.
• Citation: 32 N.W.2d 781,239 Iowa 766
• Parties: FALT v. KRUG.
• Court: Iowa Supreme Court

32 N.W.2d 781

239 Iowa 766

FALT v. KRUG.

No. 47117.

Supreme Court of Iowa

June 15, 1948

Yessler & Fahey, Howard McLaughlin and Edward J. Dahms, all of Cedar Rapids, for appellant.

Tobin & Bordewick, Vinton, Elliott, Shuttleworth &amp Ingersoll and Harry Wilmarth, all of Cedar Rapids, for appellee.

MANTZ Justice.

The case grows out of a collision between a truck owned and operated by Emil Falt and an automobile owned and operated by Clarence Krug. The collision took place on February 26, 1946, at 3 p m. at an intersection of two highways some miles south of Garrison; Benton County, Iowa. Because of such collision plaintiff brought suit against defendant for damages to his truck, repairs, expenses, and loss of time in use of said truck. When plaintiff rested, defendant moved for a directed verdict. This was sustained, plaintiff's petition was dismissed and judgment rendered against him for costs. Plaintiff has appealed.

I. The grounds of negligence which appellant charges against appellee are six in number and are as follows: '(a) That he drove his automobile into said intersection at a careless excessive, and unlawful rate of speed, in excess of 50 miles per hour. (b) That he approached said highway intersection, and drove into the same in total disregard of the possible presence of other motor vehicles, or other persons. (c) That he approached and drove into said intersection without keeping an outlook, and without looking, and wilfully and negligently permitted his attention to be diverted and directed to other matters than keeping an outlook for the possible person or other motor vehicle upon and within said intersection. (d) That defendant's view was unobstructed for a distance of 300 feet from said intersection, and at the top of a grade in the road over which he was traveling, at a point 300 feet from said intersection. (e) That the defendant drove his car negligently and carelessly as aforesaid, into said intersection without seeing the plaintiff's truck until a moment before the collision, and at which time he turned his automobile to the right and drove into and upon plaintiff's truck. (f) That the defendant, in approaching and driving into said intersection as aforesaid, failed to have his automobile under control, and did not reduce his speed to a proper and reasonable speed in crossing an intersection.'

Appellee, answering, admitted the collision and damages to both vehicles, and that it took place at a highway intersection. He denied that he was in any manner negligent, also denied that appellant at the time and place in question was free from contributory negligence and that any claimed negligence charged against appellee was the sole and proximate cause of the said collision and the damage to appellant.

When appellant rested appellee moved for a directed verdict against appellant. The principal grounds thereof were that appellant failed to show that appellee was guilty of actionable negligence, and that the evidence showed as a matter of law that appellant was guilty of negligence. The motion was sustained and this appeal followed.

The correctness of this ruling is the only matter involved in this appeal. Our conclusion is that the court erred in sustaining such motion.

Four errors are set forth and relied upon for reversal of the ruling of the trial court in directing a verdict against appellant. Boiled down they are that the court erred in finding that the plaintiff was guilty of contributory negligence as a matter of law; also, that the ruling of the trial court foreclosed him in presenting to the jury the question of whether he acted as a man of ordinary prudence in attempting to cross said intersection in the exercise of due care. Appellant states that the various errors are so correlated that they are argued in one division.

Appellee, in brief and argument to sustain the ruling of the trial court sets forth two propositions:

First: That plaintiff not only failed to prove his freedom from contributory negligence but that it affirmatively appeared that he was guilty of contributory negligence and under the record it was the duty of the court to direct a verdict against him.

Second: That the doctrine of the last clear chance was of no avail to appellant.

As to the last proposition we agree with appellee. Under the record that doctrine had no application. Appellant did not plead such doctrine and therefore it is not available to him. Phelan v. Foutz, 200 Iowa 267, 204 N.W. 240; Nyswander v. Gonser, 218 Iowa 136, 253 N.W. 829; Steele v. Brada, 213 Iowa 708, 239 N.W. 538.

Our ruling that the doctrine of last clear chance is not available under the pleadings is not to be construed as indicating it would be applicable in this case if pleaded.

II. Before setting out the legal principles applicable we will briefly outline from the record certain facts shown therein. About 3:30 p. m., February 26, 1946, appellant was driving his truck loaded with crushed rock southward on a graveled highway. He was proceeding upgrade. Part way up the hill an east and west dirt highway intersected the graveled road. Each of these highways was 66 feet wide and the traveled parts thereof were from 20 to 30 feet. The road to the west had a down grade toward the intersection. This grade extended westward something like 200 to 250 feet to a small knoll or hill. The intersection was visible from that point. There were a few trees at or near the intersection but at that time of year they did not obstruct the view to any extent. As appellant approached the intersection appellee was proceeding eastward toward that point. He was driving his own automobile. Appellant drove his truck into the intersection and when close to the south side thereof was struck by appellee's automobile, being struck about the rear wheel, the impact shearing off the dump body of the truck. The truck was turned over, two tires were blown out, rear springs broken, hydraulic lift was bent and cracked, and the frame was damaged beyond repair. After the impact the truck turned over and came to rest about forty feet south and facing north. A passenger, Mrs. Sunburg, was riding in appellee's automobile and at the collision was thrown from such vehicle and suffered serious injuries.

Appellant testified that he was travelling about twenty-five miles per hour as he approached the intersection and that just as he entered it he reduced his speed to about twenty miles per hour; that before doing so he looked ahead and to the east and west and saw no vehicles approaching--nothing was in sight. We quote from his direct examination:

'Q. Now, you say you looked both east and west just when you entered the intersection and you didn't see anybody? A. Yes.

'Q. When was the very first intimation you had of another vehicle? A. Just as I entered the intersection.

'Q. Where was this other vehicle at that particular minute? A. He was up the road between 150 and 180 feet.

'Q. What direction was he coming? A. He was traveling east. He was coming from the west traveling east.

'Q. How wide is that east and west highway there, if you know? A. I think it is 60 feet, or 67 feet.

'Q. Probably 66? A. Sixty-six. * * *

'Q. What did you do, Mr. Falt, immediately upon first discovering this other automobile about 150 feet west, you testified to? A. I proceeded acrose, on across. As I said, threw it in third gear and proceeded on across. I thought I had plenty of time to proceed across. * * *

'Q. About how many feet did you actually have to travel Mr. Falt, from the time you entered that intersection at the north line, if projected, to get across the highway running east and west? A. I would say 66 feet.

'Q. Sixty-six feet. And did you believe, or did you not believe, you had ample time to cross there before the approaching car from the west reached the intersection? A. Yes, I believed I would have ample time to cross the intersection.

'Q. You proceeded to go across, did you? A. Yes.

'Q. How far did you go with your truck before anything happened going across that intersection? A. I would say I traveled 40 feet, 40, between 40 and 50 feet over that, it seemed, before anything happened.' Appellant testified that he was between forty and fifty feet into the intersection at the impact; also that appellee's automobile was proceeding eastward towards the intersection at a speed of around 60 miles per hour; that he observed no change in the speed of appellee's car as it approached the intersection; that appellee gave no signal as he proceeded eastward.

We set out parts of the cross-examination of appellant with reference to what he did as he came up to and entered the intersection.

'* * * I looked to the west before I got to the intersection, and I also looked when I got to the intersection; I first looked to the west two or three hundred feet back from the intersection; from that point on, I looked to the right, west and looked to the east and I didn't see nothing coming and as I proceeded on I got into the intersection and I seen this here automobile bearing down the road and I knew that I should have plenty of time to get through the intersection. I thought he was coming through the intersection before I entered the intersection, but I misjudged his speed.

'Q. You entered that intersection misjudging the speed of the car which you saw bearing down on you from the right, did you? A. Not exactly, no. * * * I say I did misjudge on...