Francis v. Barnes

• Decision Date: 20 October 1964
• Docket Number: No. 51455,51455
• Citation: 130 N.W.2d 683,256 Iowa 1176
• Parties: Ruby B. FRANCIS, Appellee, v. Joseph W. BARNES, Appellant. Fern E. FRANCIS, Appellee, v. Joseph W. BARNES, Appellant.
• Court: Iowa Supreme Court

Page 683

130 N.W.2d 683

256 Iowa 1176

Ruby B. FRANCIS, Appellee, v. Joseph W. BARNES, Appellant.

Fern E. FRANCIS, Appellee, v. Joseph W. BARNES, Appellant.

No. 51455.

Supreme Court of Iowa.

Oct. 20, 1964.

Joseph L. Phelan, Fort Madison, for appellant.

Harlan W. Bainter and Thomas F. Bell, Mt. Pleasant, for appellees.

THORNTON, Justice.

This is an intersection collision case. Plaintiffs are husband and wife. They started separate actions which were consolidated for trial and are presented together here.

The collision occurred June 23, 1961, about 2:30 p. m. at the intersection of United States Highway No. 218 and Iowa Highway No. 16 in Lee County. Highway No. 218 runs north and south, Highway No. 16 runs east and west. There is a stop sign on Highway No. 16 stopping westbound traffic before it enters Highway No. 218, a through highway. Plaintiff husband was driving his 1951 Chevrolet pickup truck north on Highway 218, plaintiff wife was seated at his right. Defendant was driving his automobile in a westerly direction on Highway No. 16 to the east of Highway No. 218.

The cases were tried to a jury resulting in a verdict for plaintiff husband for $2,500 and a verdict for plaintiff wife for $22,500.

Defendant appeals urging plaintiff husband did not prove his freedom from contributory negligence, and the verdicts are excessive.

I. Defendant urges plaintiff husband has failed to prove his freedom from contributory negligence in that he did not diminish his speed and the collision occurred on the wrong side of the highway.

There was ample evidence the collision occurred on the west or 'wrong' side of Highway No. 218. All witnesses so testified except defendant who stated it was on the east side. Plaintiff husband testified:

'I remember crossing the bridge south of the intersection and I was traveling about 35 miles an hour at that time. When I first saw the automobile I was about 110 feet from the intersection. I was on the east side of the highway and driving around 25 miles per hour. The Barnes car was coming out of the intersection on the highway and was coming southwest and the Barnes car was going between 25 and 30 miles per hour. * * * The Barnes car was moving when I first saw it. I sounded my horn, I seen him coming and I started pulling to the left trying to dodge him. * * * At the time of the impact my truck was on the west side of the highway. It was kind of headed a little bit to the northwest trying to dodge him. The Barnes car was headed right at me going southwest. The point of impact on my truck was on the right-hand side toward the front. The point of impact of the Barnes car was on the front of his car. I didn't see the Barnes car stop at any time previous to this accident. * * * Just previous to the accident I touched my brakes on lightly. I didn't put them on tight.'

Plaintiff wife testified, 'My husband was driving about 45 but when he started to come down that little slope before he went through the bridge it was about 25 to 30. * * * Defendant's car was not quite to the stop sign when I saw it. * * * It was kind of hard to tell how fast the defendant's car was going but I thought it was going about 25 to 30 miles an hour. Defendant did not stop at the stop sign, he slowed up and then he came right straight on out. * * * My husband honked his horn and he stepped on the brakes a little. And I said 'Well he's goint to run into us.' My husband didn't change his direction of travel because just after I said that I was throwed against the windshield. He hit us right away.'

Defendant testified, 'I came to the stop sign on 218, and I stopped, and some traffic went by, and then I started up again, and then I seen this truck coming, and I stopped again. I might have been 18 inches or so over the line headed west, over the east edge of the pavement, * * *. Mr. Francis was going pretty fast--about 50. I wouldn't say how fast. * * * When I saw that there was going to be a collision, I just sat there with my foot on the brake, I just froze. I couldn't move either way. I think if Mr. Francis would have turned to his left, because there was no traffic coming south, and if he would have turned to his left, he would have avoided the accident.'

Defendant's grandson testified, 'When we came to the intersection and stopped at the stop sign and then proceeded into the intersection and the collision occurred. * * * Mr. Francis' truck was in the wrong lane of traffic when he hit us.'

The foregoing is substantial evidence the plaintiff was in the exercise of due care. The duty cast on plaintiff driver even though he is on a through highway and may assume others will obey the law is to have his truck under control and reduce the speed to a reasonable and proper rate when approaching and traversing an intersection. Section 321.288, Code of Iowa 1962, I.C.A. And to maintain a proper lookout. Perry v. Eblen, 250 Iowa 1338, 98 N.W.2d 832. If he is traveling at a reasonable and proper rate of speed he need not reduce it still more. Miller v. Stender, 251 Iowa 123, 131, 98 N.W.2d 338; and Rogers v. Jefferson, 224 Iowa 324, 330, 275 N.W. 874. It is a jury question. $The duty of a traveler on a through highway is stated in Paulsen v. Haker, 250 Iowa 532, 537, 95 N.W.2d 47, 50, as follows:

'The true rule is that the statutory right of way is not a guarantee of safety, but that the driver on the protected road must use reasonable care under the existing circumstances for his own safety and that of others. Likewise, in connection with the duty to keep a proper lookout, we think it is his duty to make reasonable observation of all surrounding circumstances, including intersections and other traffic which may be in fair view on intersecting roads, and to use such care as an ordinarily prudent man would do in the light of everything disclosed by such observations.'

See also Brown v. Guiter, Iowa, 128 N.W.2d 896; and Beezley v. Kleinholtz, 251 Iowa 133, 100 N.W.2d 105.

Section 321.034, Code of Iowa 1962, I.C.A., provides, 'No vehicle shall, in overtaking and passing another vehicle or at any other time, 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 do not find defendant specifically urged the above statute in the trial court. He does not point it out here. No other statute requires plaintiff to drive on the right-hand side of the roadway outside of cities and towns. See sections 321.297 and 321.298, Code of Iowa 1962, I.C.A.; and State v. Lura, Iowa, 128 N.W.2d 276. In any event the facts are such that a legal excuse for the failure to observe the statute is shown. The third legal excuse stated in Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552, 554, is, '3. Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.'

In this case the jury could properly find the act of defendant in pulling across the east or plaintiff's right side of Highway 218 in front of plaintiff furnished a legal excuse not of plaintiff's making to justify plaintiff's pulling to the left. In effect defendant so testified. Paulsen v. Mitchell, 252 Iowa 65, 73, 105 N.W.2d 603, 608; and Harris v. Clark, 251 Iowa 807, 810, 103 N.W.2d 215, 217.

This is not the exceptional case in which the contributory negligence of plaintiff is so palpable that reasonable minds may fairly reach no other conclusion.

Ordinarily contributory negligence is a jury question. No citation of authority is necessary. See rule 344(f) 10, Rules of Civil Procedure, 58 I.C.A.

Here the jury could properly find either plaintiff did slow down as he approached the intersection or he was proceeding at a reasonable rate and need not slow down, and that plaintiff pulled to the left in an attempt to avoid defendant. The record would sustain a contrary finding, it is clearly a jury question.

II. Defendant urges the verdicts to both husband and wife were excessive because not supported by the evidence. He cites Miller v. Town of Ankeny, 253 Iowa 1055, 114 N.W.2d 910; Ferris v. Riley, 251 Iowa 400, 101 N.W.2d 176; Heerde v. Kinkade, 249 Iowa 85, 85 N.W.2d 908; and Jurgens v. Davenport, Rock Island and Northwestern Railway Company, 249 Iowa 711, 88 N.W.2d 797, for the proposition a verdict may be excessive because it is not supported by the evidence in the absence of passion and prejudice and that justice may be effectuated by a remittitur. To these might be added Engman v. City of Des Moines, Iowa, 125 N.W.2d 235.

In the Engman, Ferris and Jurgens cases there is one factor not present in the wife's case here. In each of those cases the plaintiff had either not been off work as in Jurgens or had returned to work.

From the evidence the jury could properly find plaintiff wife is presently suffering from an unstable lumbosacral joint with possible disk...