Fischer v. Hawkeye Stages
| Decision Date | 03 May 1949 |
| Docket Number | 47382. |
| Citation | 37 N.W.2d 284,240 Iowa 1203 |
| Parties | FISCHER v. HAWKEYE STAGES. |
| Court | Iowa Supreme Court |
Minnich & Minnich, of Carroll, for appellant.
Rudolph & Rudolph, of Atlantic, and White & Bruner, of Carroll, for appellee.
Defendant's principal claim to a reversal is that plaintiff was guilty of contributory negligence as a matter of law. Of course it is our duty to consider the evidence in the light most favorable to plaintiff.
Plaintiff was driving his 1937 Oldsmobile sedan south on paved U.S. Highway 71 about two miles south of Templeton when it was struck from the rear by defendant's bus also traveling south. Before the collision, when plaintiff was ahead of the bus a distance variously estimated from 25 to 100 feet, plaintiff had started to turn left to enter a farm lane on the left (east) of the highway. About this time the bus driver signaled with his horn his intention to pass the sedan. Upon hearing the signal plaintiff, who had not known the bus was following him, turned his car back into the right (west) lane. The bus also turned to the right and its left front struck the right rear of plaintiff's sedan.
Trial resulted in verdict and judgment for plaintiff for $2000 from which defendant has appealed.
The claim of contributory negligence is mainly based on plaintiff's violation of statutes which required him to signal his intention to turn. So far as applicable here, sections 321.314, 321.315, and 321.318, Code, 1946, I.C.A., provide:
'No person shall turn a vehicle from a direct course * * * unless and until such movement can be made with reasonable safety and then only after giving * * * an appropriate signal * * *.
'* * * continuously during not less than the last one hundred feet traveled by the vehicle before turning.
* * *'
Both plaintiff and his wife, who was riding with him, testify plaintiff gave the signal for a left turn before the turn was started but do not say the signal was given continuously during the last 100 feet before such start. Plaintiff also says he looked in his rear vision mirror before he gave the signal but saw nothing. The bus, which was late at the time was traveling about twice as fast as the sedan. The relative speeds were about 40 to 45 and 20 to 25 miles per hour.
I. At defendant's request this interrogatory was submitted to the jury: 'Did plaintiff give a continuous signal for the last 100 feet of his intention to turn his car before he did change the course of his car?' The jury's answer was 'No.' Defendant contends this answer is irreconcilable with the general verdict for plaintiff, conclusively establishes contributory negligence and therefore defendant was entitled to judgment notwithstanding the verdict or in any event to a new trial. The contention, for which no authority is cited, cannot be sustained.
Rule 206, R.C.P., quite similar to the statutes it supersedes, provides that if a general verdict and answers to interrogatories
All the jury found by its answer to the interrogatory is that plaintiff did not (to quote from the interrogatory) 'give a continuous signal for the last 100 feet of his intention to turn his car before he did change' its course, as required by Code sections 321.314 et seq. The jury did not find no signal was given showing plaintiff's intention to turn nor that failure to signal continuously for the last 100 feet contributed directly to cause the collision. The special finding is thus obviously insufficient to defeat, as a matter of law, plaintiff's right to recover on the theory of contributory negligence. See Schulte v. Chicago, M. & St. P. Ry. Co., 114 Iowa 89, 93, 86 N.W. 63, and citations (Ladd, J.); 64 C.J., Trial, section 965.
By its general verdict the jury necessarily found plaintiff's failure to signal continuously for the last 100 feet did not directly contribute to the collision. See Case v. Chicago, M. & St. P. Ry. Co., 100 Iowa 487, 491, 69 N.W. 538; Conwell v. Tri-City Ry. Co., 135 Iowa 190, 112 N.W. 546; Carlson v. Meusberger, 200 Iowa 65, 70, 204 N.W. 432. Since there is no irreconciliable conflict between the special finding and the general verdict, under established rules the general verdict, not the special finding, must control.
It is settled both in Iowa and by the authorities generally that all reasonable presumptions are in favor of the general verdict. Nothing is presumed in aid of the special finding. If the general verdict thus aided is not in irreconcilable conflict with the special finding the former must stand. The special finding controls only where the conflict between it and the general verdict is such as to be clearly beyond the possibility of reconciliation under any conceivable state of facts provable under the issues. Fishbaugh v. Spunaugle, 118 Iowa 337, 343-345, 92 N.W. 58, and citations; Note 24 L.R.A., N.S., 1, 67; 53 Am.Jur., Trial, section 1083; 64 C.J., Trial, sections 965-968.
We are not at liberty to resort to the evidence in aid of the special finding. We have many times held that 'to entitle a party to a judgment on special findings against a general verdict in favor of his adversary, the special findings must be inconsistent with the general verdict, and must of themselves, or when taken in connection with the facts admitted by the pleadings, be sufficient to establish or defeat the right of recovery.' (Italics added.) Schulte v. Chicago, M. & St. P. Ry. Co., supra, 114 Iowa 89, 93, 86 N.W. 63, and citations. See also Note 24 L.R.A., N.S., 1, 66; 53 Am.Jur., Trial, section 1084; 64 C.J., Trial, section 968.
To quote further from the Schulte case, 114 Iowa 89, 92, 86 N.W. 63, 64: '* * * the evidence may not be resorted to in aid of the special findings as against the general verdict.' And from Case v. Chicago, M. & St. P. Ry. Co., supra, 100 Iowa 487, 491, 69 N.W. 538, 539:
In Conwell v. Tri-City Ry. Co., supra, 135 Iowa 190, 191, 112 N.W. 546, 547, it is said: '* * * the special findings cannot be added to or supported by the evidence, and must be given effect only so far as they necessarily negative the findings which might otherwise be assumed in support of the general verdict.' Farmers' Sav. Bank v. Burr Forbes & Son, 151 Iowa 627, 635, 636, 132 N.W. 59, 63, states, 'In considering the testimony in aid of the answers to the interrogatories, the court was in error, * * *.'
In Coffman v. Chicago, R. I. & P. Ry. Co., 90 Iowa 462, 466, 57 N.W. 955, 957, it is said that in determining whether special findings are inconsistent with the general verdict it is proper to consider admissions of the parties, whether made by the pleadings 'or by other means.' The admissions considered in the cited case were only those made in the pleadings. The above statement in the Coffman opinion is questioned if not inferentially repudiated in Schulte v. Chicago, M. & St. P. Ry. Co., supra, 114 Iowa 89, 93, 86 N.W. 63, in this language: 'Just what was intended does not appear. 'Admissions by other means' had not been taken into consideration, and the remark must be regarded as mere dicta.'
This language appears in Martin & Turner v. Widner, McKenzie & Co., 91 Iowa 459, 461, 59 N.W. 345: 'Of course, other undisputed facts could be considered by the court in passing upon the motion.' This statement is thus explained in Kerr v. Keokuk Waterworks Co., 95 Iowa 509, 512, 513, 64 N.W. 596, 597: 'That language was used in connection with the facts as shown by the pleadings, and which were specially found by the special verdict.'
To resort to the evidence in search of irreconcilable conflict between the special finding and the general verdict would be in disregard of this holding: 'The court will not strain a point to discover an inconsistency between the verdict and the finding * * *.' Fishbaugh v. Spunaugle, supra, 118 Iowa 337, 345, 92 N.W. 58, 61.
II. We think plaintiff has not failed, as a matter of law, to show his freedom from contributory negligence. As a witness plaintiff repeatedly insists he gave a signal of his intention to turn left by extending his left arm. Part of his testimony is:
* * *
Plaintiff's wife says: 'Before Mr. Fischer started to turn across the center line he rolled the window down and put his hand out.'
There is other testimony like the above. There is also evidence that shortly after the collision defendant's bus driver told a highway patrolman, 'I guess I was in the wrong.'
It is true the bus driver and two passengers in the bus testify they saw no signal, the driver denies having admitted he was in the wrong, and there is evidence plaintiff stated out of court he gave no signal. But the jury had a right to believe the testimony for plaintiff the signal was given. They may well have concluded plaintiff, as he testifies, gave a signal for 60 feet before he started to turn left. The jury could also properly find that although plaintiff...
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