Goman v. Benedik

• Decision Date: 06 March 1962
• Docket Number: No. 50582,50582
• Citation: 113 N.W.2d 738,253 Iowa 719
• Parties: Ralph GOMAN, d/b/a Acme Transfer Company, Appellee, v. Mary BENEDIK, Appellant.
• Court: Iowa Supreme Court

Page 738

113 N.W.2d 738

253 Iowa 719

Ralph GOMAN, d/b/a Acme Transfer Company, Appellee, v. Mary BENEDIK, Appellant.

No. 50582.

Supreme Court of Iowa.

March 6, 1962.

Clyde Putnam, Jr., of Putnam & Putnam, Des Moines, and Walter J. Willett, Tama, for appellant.

Ben Morris, of Hyland & Hyland, Tama, and George G. Fagg and Harry Druker, of Boardman, Cartwright & Druker, Marshalltown, for appellee.

LARSON, Justice.

The question presented by this appeal is whether the trial court erred in refusing to rule as a matter of law plaintiff was contributorily negligent, and therefore could not recover in an action for damages to his truck tractor as a result of a collision with the rear end of defendant's automobile on a primary highway bridge. We hold with the trial court that under the record the issue of freedom from contributory negligence was one of fact for the jury and affirm the judgment for plaintiff.

Certain basic propositions needing no citation of authority applicable to this matter perhaps should be mentioned. It is not disputed by appellant, that we must view the evidence in the light most favorable to plaintiff; that it is only the exceptional case in which the issue of freedom from contributory negligence should not be submitted to the jury--only where such negligence is so palpable, flagrant and manifest that reasonable minds may fairly reach no other conclusion; that if there is any evidence tending to establish plaintiff's freedom from contributory negligence, the question is one of fact for the jury and doubts should be resolved in favor of such submission. Bannister v. Dale, Iowa, 109 N.W.2d 626, and citations. Auen v. Kluver, 250 Iowa 619, 95 N.W.2d 273. Other propositions well established applicable here are, that a driver with the right of way has the right to assume until he knows or should know otherwise, that other drivers will comply with the statutes controlling access to the highway, and that control of one's vehicle as required by section 321.288, of the Code, I.C.A., does not necessarily mean ability to stop instanter, but means an automobile is under control, if at the rate it is moving the driver has the mechanism and power under such control that he can bring it to a stop with a reasonable degree of celerity. This of course depends greatly upon the existing circumstances. Dorman v. Service Sales Company, 241 Iowa 1182, 44 N.W.2d 716, and authorities cited.

In view of appellant's contention that plaintiff by his own testimony disclosed a failure to have his vehicle under control, a failure to operate his vehicle in such a manner that it could be brought to a stop within the assured clear distance ahead, and that he did not bring his vehicle to a stop with a reasonable degree of celerity, a rather detailed review of the record seems necessary.

William Bowman, age twenty, whom we shall for convenience refer to as plaintiff, an experienced and licensed driver for the Acme Transfer Company, at about 5:00 P.M., on August 24, 1956, was operating the company's 1956 G.M.C. tractor and trailer loaded with 3100 punds of boxed meat, eastward on Highway 30 some fourteen miles east of Tama, Iowa, when it collided with the rear of a Plymouth automobile driven by the defendant, Mary Benedik, then 61 years of age. When the gasoline tank on the automobile ruptured fire resulted, seriously damaging the tractor, and destroying the car. No one was injured in the mishap.

The collision occurred in the east bound lane approximately one-third the distance across a 375.1 foot two lane bridge, and the vehicles came to rest against the north cement guard rail in the west bound lane, approximately 275 feet from the west end of the bridge. The 24 foot wide cement pavement from a county road intersection some 810.7 feet west of the bridge, over Salt Creek, was dry, clear and level, but east of the bridge there was a small depression followed by a slight rise over a railroad right-of-way. West of the county road intersection the highway runs uphill approximately 200 feet, to a crest, and then continues to climb for about a mile.

Plaintiff testified that as he came down the hill from the west he used his brakes to hold his rig within the legal speed limit, and that as he approached the intersection he saw a Plymouth automobile headed east, parked on the south shoulder of the highway approximately 20 feet from the bridge. His 45 foot tractor and trailer weighing a total of 53000 pounds was then traveling 45 or 50 miles per hour. As he passed the intersection he noticed defendant and another woman get into the Plymouth car. Although he sounded his horn, without any signal or warning from her, the defendant started her car, pulled from the shoulder onto the pavement in the path of his tractor and trailer, and headed eastward. There is some variation in the testimony as to just how far behind her plaintiff was when she pulled into his path, but whether is was 100 feet or 125 feet, it was so close he said a stop could not be made in that distance and the court gave the jury an emergency instruction. No error is predicated thereon in this appeal and under the circumstances we think it was proper, if not required.

As plaintiff approached the bridge he reduced his speed to about 40 miles per hour, 'maybe thirty-five', and had taken note of an automobile approaching from the east in the west bound lane. Although he swung his rig to the left partially into the west bound lane to avoid an immediate collision with defendant's car, he was promptly forced back into the east lane by the fast moving west bound vehicle. While executing this maneuver which he said was to gain some time for defendant to accelerate her automobile, and give him room to slow down or stop, he applied both foot and hand air brakes, and the emergency brake. He also sounded his horn to alert her to the danger.

Plaintiff estimated defendant's speed at 10 miles per hour, and said when he pulled back into the south lane she was only one or two car lengths ahead of him. She did not gain speed and although he had reduced his speed to 20 or 25 miles per hour, he overtook her at a point 125 or 135 feet from the west end of the bridge. The collision occurred just as the west bound car passed. When they stopped the front of the Plymouth was about 135 feet from the point of impact, the tractor locked behind it, and the trailer was jacknifed across both lanes of traffic.

Plaintiff testified his brakes were of the latest and best design, and had been recently inspected and tested and were in excellent condition. He said they functioned properly as they were applied on this occasion, although the only skid marks visible were from 'just before the impact and up to where we stopped.'

Defendant contends the distance it took plaintiff to stop his tractor trailer outfit after defendant entered his path, was so excessive that it conclusively proved his lack of due care.

I. It is of course plaintiff's burden to plead and prove freedom from contributory negligence, or any negligence which contributed to his injury. His failure to do so will bar his recovery. Hutchinson v. Minneapolis & St. L. Ry. Co., Iowa, 106 N.W.2d 419, 421, and citations. However it is only in the exceptional case that this question of fact is for the court. Paulsen v. Mitchell, Iowa, 105 N.W.2d 603, 605, and citations.

It is the general rule also that a motorist has a right, though hazardous sometimes, to assume until he knows, or in the exercise or due care should know otherwise, that other motorists will obey the rules of the road, and will operate their vehicles with ordinary care under the circumstances. Dorman v. Service Sales Co., supra, 241 Iowa 1182, 1184, 44 N.W.2d 716, and citations.

II. Did plaintiff here fail to generate a jury question on either issue? Apparently we have previously considered no case in which like circumstances have appeared. However, we have often said each case of this type must depend greatly upon the circumstances revealed by the record. Sisson v. Weathermon, Iowa, 108 N.W.2d 585.

As previously indicated, we think plaintiff's showing that defendant entered the highway in his path was sufficient to sustain a finding that he faced an emergency not of his own making. Clearly the resulting situation not only endangered these parties but those in the west bound vehicle as well.

That plaintiff's assured clear distance before her entrance onto...