Hanson v. Manning
Decision Date | 16 December 1931 |
Docket Number | 41047 |
Parties | J. M. HANSON, Appellant, v. M. M. MANNING, Appellee |
Court | Iowa Supreme Court |
Appeal from Guthrie District Court.--FRANK BECHLY, Judge.
Plaintiff while on a public highway was struck by defendant's car and severely injured, and brings this action for resulting damages. Verdict and judgment for defendant. Plaintiff appeals.
Reversed.
Moore & Moore and F. T. Van Liew, for appellant.
C. C Putman and Paul H. Williams, for appellee.
The accident occurred upon an east and west highway, west, and within a few feet, of a private driveway running south to a farmhouse. Plaintiff was a guest in a car owned and driven by Cornelius (Father) Lalley. The car, headed east, was stopped on the right or south side of the graveled roadway about one and one-half feet from the south edge of the gravel, to repair the left back tire. A service car, facing west, was backed within 10 or 15 feet of the Lalley car. The accident occurred at about 5:30 in the afternoon of November 20, 1929, that being the hour at which plaintiff's watch, which was broken, stopped. It was not raining. The road was perfectly dry. It was dark. Father Lalley testified: Beyond these matters there is no evidence as to weather conditions, or visibility. The lights of the Lalley car, facing east, and the tail light had been turned on. The lights of the service car, facing west, were on. On the rear or east end of the service car, was a tower. On this tower was a white light about 10 feet above the ground, which "appeared to be a stronger light than the ordinary headlight on an automobile." Repair men were working between the two cars in the light furnished from the tower. Father Lalley testified:
The repair man testified:
Plaintiff testified:
The defendant offered no evidence. On his motion, the court withdrew from the jury the pleaded charges that defendant negligently failed to sound a horn or give a signal, and failed to reduce the speed of his car so as not to endanger plaintiff; that defendant negligently drove outside of the traveled portion of the highway without giving signal of his approach and without leaving sufficient space for plaintiff to stand in safety beside the Lalley car; that defendant negligently operated his automobile without due regard to the rights of the plaintiff in the highway, and drove his car through plaintiff's place of safety without sufficient opportunity for plaintiff to escape. The court submitted to the jury but one specification of negligence: namely, that defendant "was driving such vehicle upon the highway at a speed greater than would permit him to bring it to a stop within the assured clear distance ahead." Defendant argues in this court:
However, defendant did not in the lower court concede that he was negligent. On the contrary, he moved to direct a verdict on the ground, among others, that the plaintiff had wholly failed to show that defendant was guilty of negligence. The jury might have found in defendant's favor on the one specification of negligence that was submitted to them. It is not shown that they found that plaintiff was guilty of contributory negligence.
The different specifications of negligence did not constitute separate causes of action. Hammer v. Chicago, R. I. & P. R. Co., 61 Iowa 56, 15 N.W. 597. They were not so pleaded. Plaintiff pleaded: "Defendant was careless and negligent in the operation of his said car in the following particulars, to wit,"--setting out seven particulars, including those which have been referred to. The cause of action is the operation of the car in a negligent manner so as to cause the car to strike the plaintiff. The negligence is properly alleged to have consisted not alone in one particular but in several, which were not separate or independent acts of negligence but one compound negligent act. Bongner v. Ziegenhein, 165 Mo.App. 328, 147 S.W. 182. All of the specifications which reasonable minds might find to be sustained by the evidence should have been submitted to the jury. Defendant concedes that "the evidence was clear and undisputed that the defendant was negligent in that particular"--the one that was submitted.
"* * * a car is under control, within the meaning of the law, if it is moving at such a rate and the driver has the mechanism and power under such control that it can be brought to a stop with a reasonable degree of celerity." Altfilisch v. Wessel, 208 Iowa 361, 367, 225 N.W. 862.
See, also, Spiker v. Ottumwa, 193 Iowa 844, 849, 186 N.W. 465; Brown v. Des Moines Bottling Works, 174 Iowa 715, 721, 156 N.W. 829.
On this record the specification of failure to have the car under control and failure to reduce speed was intimately associated with the specification conceded in this court (not, however, to the jury) to be undeniable.
Negligence is a relative term. Both plaintiff and defe...
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