Hackney v. Tower
Decision Date | 11 July 1967 |
Docket Number | No. 52550,52550 |
Citation | 260 Iowa 1101,152 N.W.2d 257 |
Parties | Norman HACKNEY, Plaintiff, v. Michael TOWER and Charles Suchanek, Defendants. Michael TOWER and Charles Suchanek, Counterclaimants, v. Norman HACKNEY, Counterclaim Defendant. |
Court | Iowa Supreme Court |
James W. Crawford and Gene V. Kellenberger, Cedar Rapids, for appellant.
Benjamin P .Morris, III, Tama, for appellees.
This is a rear end collision case involving two trucks traveling in the same direction. Plaintiff owner of the preceding truck sued defendant driver and defendant owner of the following truck. Defendants counterclaimed. The matter was tried to the court without a jury. The trial court found for defendants counterclaimants and awarded damages based on the counterclaim. We affirm.
Gordon Warren was operating plaintiff Hackney's truck. Defendant Tower was operating defendant Suchanek's truck. For convenience the parties will be referred to as plaintiff on the one side and defendants or counterclaimants on the other side. Both parties were operating heavily loaded gravel trucks along a gravel county road that was described as dry, dusty and hilly. The dust obscured visibility to some extent and the additional dust raised by the trucks further restricted vision.
The facts involved a third truck operated by William Taylor. All three trucks were hauling gravel from two different quarries to a cement mixing plant some 25 miles away. They had been hauling all day when the collision occurred about 4:00 P.M. All trucks were headed south. Taylor entered the gravel county road in front of the plaintiff's and defendants' trucks which had entered the road from the other quarry. Taylor's truck was passed by plaintiff. The trucks proceeded south, plaintiff in front, Taylor some distance behind him and defendant in the rear. There was evidence that the trucks were running from 30 to 50 miles an hour at different times. Each driver testified that he knew of the presence of the other two trucks that were traveling in the same direction. They had all made numerous trips over the route.
In the hilly terrain there were two hills immediately involved. Plaintiff driver testified he topped the first hill, drove down into a valley and over the crest of a smaller but steeper hill. As he got over the crest of the second hill, plaintiff's hood latch broke. The right side of the hood flew up obscuring his visibility to the right. He could see ahead but could not see the ditch to the right. He said he immediately slowed down to about 10 miles per hour.
Taylor, driving truck #2, topped the crest traveling about 50 miles per hour, came into a heavy cloud of dust caused by plaintiff's truck, saw plaintiff's truck which he said was then stopped or almost stopped, jerked his truck to the left and went around plaintiff's truck. He heard a crash, pulled into a driveway and went back to the scene of the collision.
Defendant testified that he was following the other two trucks and knew that they were ahead of him by the dust clouds they made. He approached the top of the second grade at 30 to 40 miles an hour. He then testified, When he slammed on his brakes the wheels skidded. After he had his brakes on defendant saw plaintiff's truck ahead. He tried to turn left but could not do that with the wheels skidding. The right front of defendant's truck hit the left rear of plaintiff's truck.
The highway patrolmen established that the road was 26 feet wide. Defendant testified that he measured the road and found it to be 31 feet wide. There is no dispute that at time of impact both trucks were in the traveled portion of the road on the right hand side.
After the case had been submitted defendants were allowed to amend their counterclaim to charge: 'That he (plaintiff's driver) was negligent in materially reducing the speed of the motor vehicle he was operating when he knew that there were other motor vehicles behind him, including the Defendants', and so close that such reducing of speed could likely result in a collision.' It was on this specification that the court found for counterclaimants.
The trial judge made a careful analysis of both the facts and the law. He found as a fact: 'Warren had abruptly reduced the speed of his vehicle, but had not brought it to a complete stop and it was still moving forward very slowly when the collision occurred, much less than the ten miles per hour he testified to.' He then concluded that plaintiff could not recover because the proximate cause of the accident was Warren's negligence. As to the counterclaim he stated in part: 'Warren's act of driving at only a few miles an hour for some distance, with the dense cloud of dust immediately behind him, was negligence, under the specification pleaded in the Amendment to Counter Claim, and such negligence was a proximate cause of the collision.' As to counterclaimant's contributory negligence he held that Tower was exercising due care when he drove over the crest of the hill, that he was then confronted with a sudden emergency not of his own making:
I. Plaintiff's first assignment of error is that the court erred in finding plaintiff guilty of negligence. Many points in the foregoing recitation of facts were contested. As stated in Cronk v. Iowa Power and Light Company, 258 Iowa 603, 138 N.W.2d 843, 844:
Plaintiff contends that defendant was driving under poor visibility conditions due to dust, when the hood latch broke and the right half of the hood raised his visibility was further restricted, that at that time plaintiff's driver did what the law required him to do, he slowed down preparatory to stopping to fix the hood. However, Taylor said the visibility ahead of plaintiff's truck when he passed it was good and plaintiff's driver testified:
In this regard the trial court found:
In this division of his brief plaintiff places principal reliance on Jesse v. Wemer & Wemer Company, 248 Iowa 1002, 82 N.W.2d 82, 87 (1957); Lukin v. Marvel, 219 Iowa 773, 781, 259 N.W. 782 (1935) and Winter v. Davis, 217 Iowa 424, 251 N.W. 770 (1933).
We do not find the cases factually similar. In Jesse v. Wemer & Wemer Co., supra, defendant slowed or stopped his truck to allow another truck to go through a narrow underpass. In commenting on the language used in that case we later said in Pinckney v. Watkinson, 254 Iowa 144, 153, 116 N.W.2d 258: 'All voluntary stopping of a vehicle which amounts to parking or leaving a vehicle standing, attended or otherwise, with the exceptions stated therein, is prohibited by the statute. It may be true our pronouncement as to the requirement of 'stopping' under this statute gives the impression all such momentary stops are excusable, but such was not our intention and such is not the law. Jesse v. Wemer & Wemer Co., 248 Iowa...
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