Florke v. Peterson

• Decision Date: 26 July 1954
• Docket Number: No. 48517,48517
• Citation: 245 Iowa 1031,65 N.W.2d 372
• Parties: FLORKE v. PETERSON.
• Court: Iowa Supreme Court

Page 372

65 N.W.2d 372

245 Iowa 1031

FLORKE v. PETERSON.

No. 48517.

Supreme Court of Iowa.

July 26, 1954.

Pendleton & Rendleton, of Storm Lake, and Prince & Guthrie, of Webster City, for appellant.

Burnstedt, Hemingway & Hemingway, of Webster City, for appellee.

SMITH, Justice.

While driving east on U. S. Highway 20 plaintiff, driving a Chrysler automobile, started to pass a county gravel truck driven by defendant in the same direction. At about the same time defendant made a left turn at a T-intersection of the highway with a dirt road going north. A collision occurred and plaintiff brought this action for the resulting damage.

Defendant, at the close of plaintiff's evidence, and again after all the evidence was in, moved for a directed verdict claiming plaintiff was guilty of contributory negligence under section 321.304, Iowa Code 1950, I.C.A., in attempting to pass within 100 feet of an intersection. The motions were overruled. A verdict was returned for plaintiff. Defendant then filed a motion for judgment non obstante veredicto urging the same ground. It was sustained, the court saying: 'At the close of the evidence the Court was clear that the plaintiff was contributorily negligent in trying to pass defendant within 100 feet of the intersection. But to avoid the necessity of another trial in the event of error, although it seemed a nonsuit had to be, the case was submitted to the jury.' This appeal by plaintiff followed.

I. We approve the trial court's procedure. A verdict for defendant might entirely avert appeal; and the verdict for plaintiff serves to avoid the necessity of retrial in the event of reversal. The procedure conforms to the spirit of Rule 243(b) R.C.P., 58 I.C.A. See Rules Committee and Author's Comments, 3 Cook Iowa Rules of Civil Procedure 23. It is in line with the purpose of the legislation under which the Rules were conceived--'promoting the speedy determination of litigation upon its merits.' Sections 684.18, 648.19, Iowa Code 1950, I.C.A.

II. The sole question here concerns the issue of contributory negligence. There is no substantial conflict in evidence as to the movements of the vehicles. Code section 321.304 provides: 'No vehicle shall, in overtaking and passing another vehicle * * *, be driven to the left side of the roadway under the following conditions: * * *.

'2. * * * when approaching within one hundred feet of or traversing any intersection * * *.'

We have consistently held that violation, without legal excuse, of a statute which prescribes the care required under given conditions constitutes negligence per se. Eaats v. Sullivan, 199 Iowa 875, 883, 200 N.W. 321, citing earlier cases; Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552; Dillon v. Diamond Products Co., 215 Iowa 440, 245 N.W. 725; Falt v. Krug, 239 Iowa 766, 773, 32 N.W.2d 781; Wilson v. Long, 221 Iowa 668, 671, 266 N.W. 482. See 65 C.J.S., Negligence, § 19c(2)(a), p. 418; 38 Am.Jur., Negligence, § 196.

III. Plaintiff concedes the legal proposition just referred to and that he failed to obey the mandate of Code section 321.304. But he claims there was substantial evidence of 'legal excuse' for his failure. He argues there was evidence the view of the intersection was obscure because corn was 'growing in such a manner as to obstruct the view of a motorist and prevent the identity of the intersection;' that 'corn was planted right up to the corner on the north side of the road.'

Plaintiff's wife and young daughter sat with him on the front seat as he drove. The daughter testified she thought the lane to the north 'was just a farm lane.'

His wife said she did not notice the road to the north 'until we got right up close * * * it would not be further than 100 feet * * *. It is raised a little * * * it just looked like it was going up into--well, you might say like a farm lying far off, or just like an old off-road, as I would call it, not no main traffic.' Later she explained 'it appeared to be a farmer's lane. I was probable 25 or 30 feet distant from the road before I could ascertain that it was a gravel road.'

Plaintiff, on direct examination, testified positively ('absolutely') he was 'watching for intersections' and did not observe this one. 'I did not know that a road went north from Number 20 until we were right up on it.'

On cross-examination however he answered: 'Q. If anyone had looked you could not help but see it? A. I thought it was a lane. * * *

'Q. If you had looked before, you could have seen it, couldn't you? A. I suppose so, yes.

'Q. You could'nt help but see it, isn't that right? A. Yes.

'Q. Anybody could see that road if they had looked a quarter of a mile away? A. I wouldn't say that you could because there is a corn field there. * * *

'Q. If you are looking around at the north side of Highway 20 you can see that a road comes in from the north at the place of the accident at least 1000 feet back from the corner? A. Not too plainly.

'Q. But you can see it, it is not different than the others? A. No.'

After some further testimony to the effect there was no highway sign ('They generally put signs there, they have a dead end sign * * * in Missouri and in Iowa') plaintiff was again asked and answered: 'Q. But at least you could have seen it had you looked for at least 1000 feet? A. Yes.

'Q. And the reason you didn't see it * * * was maybe you were watching the truck, is that right? A. I had a plain view. There was no oncoming cars.

'Q. But you could have seen it had you looked, isn't that right? A. Yes.' On redirect he was asked whether he meant he could identify from 1000 feet back that there was a road going north he answered 'No sir * * * I thought it was a country road.' And in response to his attorney's leading questions (not objected to) he said he was not able to tell the difference 'whether it was a lane into field or farm or highway,' that there was no yellow line and that he observed nothing within a distance of 150 feet 'that would distinguish it from an ordinary lane as distinguished from a roadway.'

On recross examination his answers were vague and somewhat evasive--'not too plainly,' 'that ain't too much of a highway there,' 'there was no dead end road signs.' And on another redirect examination in answer, 'yes and no' fashion to several leading questions, he testified he meant that approximately 800 or 1000 feet back it was possible to see 'the elevation or lead-in from the north' but that there was no way to identify whether it was 'a lane or road.'

We have set out at some length the testimony on plaintiff's behalf bearing on the question of his claimed 'legal excuse.'

IV. The evidence is not sufficient to pose a jury question. We have in earlier cases classified 'legal excuse in four categories: 1. Anything that would make compliance with the statute impossible; 2. Anything over which the driver has no control which places his car in a position violative of the statute; 3. An emergency not of the driver's own making by reason of which he fails to obey the statute; 4. An excuse specifically provided by statute. Kisling v. Thierman, supra, 214 Iowa at page 916, 243 N.W. 552, and Amelsburg v. Lunning, 234 Iowa 852, 857, 14 N.W.2d 680. For other statements of what constitutes legal excuse, see 65 C.J.S., Negligence, § 19h; Larkins v. Kohlmeyer, 229 Ind. 391, 98 N.E.2d 896, 900; Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851, 855.

The trial court instructed in effect that plaintiff might be excused if the evidence showed that it was reasonably impossible for him to comply. And plaintiff argues that since there was no exception taken to that instruction it is the law of the case and we must measure the evidence by it.

The contention is unsound. Rule 243(b) R.C.P., already referred to, expressly permits a judgment notwithstanding verdict if the movant was entitled to and moved for a directed verdict at the close of the evidence. The rights of the parties are fixed as of that time. Defendant was not required thereafter to cooperate or collaborate (by either exception or request) in formulating correct instructions for proper submission of the very issue he claimed should not be submitted at all. Having made his record he could stand on it, taking his chance, of course, on a...