France v. Benter

Decision Date05 May 1964
Docket NumberNo. 51295,51295
Citation256 Iowa 534,128 N.W.2d 268
Parties, 22 A.L.R.3d 313 James W. FRANCE, Appellee, v. Kenneth BENTER and Arlan Benter, Appellants.
CourtIowa Supreme Court

Swift & Swift, Manchester, for appellants.

August F. Honsell, Jr., Cedar Rapids, for appellee.

THOMPSON, Justice.

This is a small case with some large difficulties. The amounts involved both in plaintiff's petition and the counterclaim are, respectively, $254.18, and $657.22. No personal injuries are involved; the sums claimed being for damages to the plaintiff's automobile and the car belonging to the defendant, Kenneth Benter, sustained in a collision between the two vehicles on April 16, 1961, in the town of Walford. By stipulation at the trial, which was to the court without a jury, plaintiff's damages were fixed at the sum claimed as set forth above; and the necessary and proper repairs to Kenneth Benter's car at $532.22, plus an agreement that the fair and reasonable time needed for repair of the Benter car was fourteen days.

Some difficult and important legal questions arise. The collision occurred in daylight, at a time when both automobiles were traveling northeast on highway #149, which passes through the incorporated town of Walford and forms the main street of the town. The evidence shows without dispute that the collision happened in the corporate limits.

The defendant Arlan Benter was driving an automobile owned by his brother, Kenneth Benter, with the latter's consent. Kenneth Benter was not present, Arlan being accompanied by one Mary Sackett. Following the Benter car and traveling at a considerably faster speed was the vehicle owned and driven by the plaintiff, who was alone so far as the record shows. As the Benter car started to make a left turn into a service station on the northerly side of the roadway, the plaintiff was in the act of passing on Benter's left. A collision occurred in which the two cars were damaged as stated above.

The trial court found the facts and law for the plaintiff, and entered judgment against both defendants in the sum of $281.10, which was the agreed cost of repair with interest from the date of the collision. The counterclaim of Kenneth Benter was dismissed, and we have this appeal.

I. The basic proposition raised by the assignments of error is this: was the plaintiff guilty of negligence as a matter of law?

This divides into two questions: Was the plaintiff guilty of negligence per se because he failed to give timely notice of his intention to pass by sounding his horn; and was he guilty of such negligence because he drove on the left side of the center of the street in violation of section 321.297?

We are of course bound by the findings of fact of the trial court if they are supported by substantial evidence; it is only when such findings are undisputed or no conflicting inferences may be drawn from them that we may interfere. We may also find error if the trial court applied erroneous rules of law which materially affected the decision. We review the record with these principles in mind.

II. The defendant contends that the plaintiff was negligent as a matter of law because he failed to sound his horn or to give any warning of his intention to pass before attempting to do so. The record shows that he gave no horn signal until he was in the act of passing; his own testimony is that he did not sound his horn 'prior to passing the other car and didn't blow it until I realized he was going to turn left and I saw an accident was going to happen.'

We have not heretofore definitely decided whether failure to sound a horn before attempting to pass a preceding vehicle going in the same direction is negligence per se. The defendant relies upon Clayton v. McIlrath, 241 Iowa 1162, 44 N.W.2d 741, 27 A.L.R.2d 307, and cases from other jurisdictions. But in the Clayton case we were discussing the refusal of a requested instruction which would have told the jury that the driver of an overtaking car must not only sound his horn but must be reasonably assured the preceding driver heard the signal. The case must be considered with that situation in mind. It is possible to construe some of the language used to support an argument that the horn signal must be given, or a conclusion of negligence will be mandatory. But a careful analysis of the case does not support such an interpretation.

No Iowa statute requires the giving of a horn signal before attempting to pass an overtaken vehicle. So the failure to give such a signal does not bring the case within the rule of Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552. There we held that failure to obey a statutory law of the road is negligence per se, except that violation of what is now section 321.298 is merely prima facie evidence of negligence. This exception is not material here.

The only statutes bearing on the question of duty to sound a horn before passing are §§ 321.299 and 321.432. We quote the pertinent part of section 321.299: 'Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.' The following sections 321.300 and 321.301 deal with the duty of the overtaken driver when the signal has been given.

The other statute dealing directly with horns is section 321.432, which is set out: 'Every motor vehicle when operated upon a highway shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than two hundred feet, but no horn or other warning device shall emit an unreasonably loud or harsh sound or a whistle. The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a highway.'

Neither of these sections places on the overtaking driver any positive duty to sound his horn before passing. Admittedly he may well be guilty of negligence in failing to do so; but this is a fact question, arising from a violation of a common law duty rather than from a violation of any statute. In fact, section 321.432, supra, seems to leave the question open to a finding of fact. It requires the sounding of the horn only when 'reasonably necessary to insure safe operation.' We recognized this in Stiefel v. Wandro, 246 Iowa 807, 815, 68 N.W.2d 53, 58, a case in which the passing driver admitted he had not sounded his horn. We said: 'Under all the circumstances it was for the jury to say whether it was reasonably necessary in order to insure safe operation of the defendant's car that he sound his horn.' Likewise, in Short v. Powell, 228 Iowa 333, 337, 291 N.W. 406, 408, after quoting what is now the material part of section 321.432, supra, we said: 'As to when the horn must be used being thus left to the reasonable discretion of the driver, it would seem to require no argument or citation to show that whether plaintiff would have sounded his horn was a fact question rather than one of law.'

Much in point is the reasoning of the Michigan Supreme Court in McLaughlin v. Curry, 242 Mich. 228, 218 N.W. 698, 699. We quote: 'By the Act of 1927, the duty of giving an audible signal was placed on the driver of the passing car, while, under the Act of 1925, the duty of yielding was placed on the driver of the passed car when and if the signal was given. The trial judge correctly stated to the jury the effect of the statute then in force. A duty was placed on the driver of the passed car to yield, if the signal was given, but the duty to give the signal was not placed by the statute on the driver of the passing car.' It is evident the Michigan statute considered was in effect the same as the above quoted part of our section 321.299.

The Louisiana Court of Appeal has considered the question before us at this point. Speaking of an ordinance of the City of New Orleans, which was apparently substantially like our section 321.299, the court said: '* * * we are of the opinion that it was not the intention of those who drafted and enacted the Ordinance 'to require that the horn of every vehicle be sounded whenever its driver intends to pass a vehicle which is already sufficiently far to the right. It is quite plain that the purpose of the * * * provision was to give to the overtaking vehicle the right to require the vehicle ahead to swerve to the right in order to afford a path in which the overtaking vehicle might pass.'' Martin v. Globe Indemnity Company, La.App., 64 So.2d 257, 259. To the same effect is Service Fire Insurance Company v. Indiana Lumbermans Mutual Insurance Company, La.App., 111 So.2d 358, 362.

Cases in other jurisdictions have held that failure to give a timely warning of intention to pass by sounding a horn is negligence as a matter of law. Suren v. Zuege, 186 Wis. 264, 201 N.W. 722; Kerlinske v. Etzel, 194 Wis. 36, 215 N.W. 591; and Cadwell v. Anschutz, 4 Cal.2d 709, 52 P.2d 916, are cited to this effect. Whether they may be distinguished because of differences in statutes or for other reasons we do not determine. We believe our holding above is the proper one under our statutes. Bishard v. Engelbeck, 180 Iowa 1132, 1140, 1141, 164 N.W. 203, 206, while not factually directly in point, holds that it is not necessary to sound the horn in all passing situations, and somewhat strengthens our conclusion.

Attention should be give to Johnson v. Kinnan, 195 Iowa 720, 729, 730, 192 N.W. 863, 867. There appears language which says that it is the duty of the driver of the overtaking car to 'give a signal'. But again we were discussing the question whether it was the duty of the overtaking driver to make sure the preceding driver heard the signal. The statement was dictum. So far as the case may be thought to hold that it is the duty of the...

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