Hanson v. Manning

• Decision Date: 16 December 1931
• Docket Number: No. 41047.,41047.
• Citation: 213 Iowa 625,239 N.W. 793
• Parties: HANSON v. MANNING.
• Court: Iowa Supreme Court

213 Iowa 625

239 N.W. 793

HANSON

v.MANNING.

No. 41047.

Supreme Court of Iowa.

Dec. 16, 1931.

Appeal from District Court, Guthrie County; Frank Bechly, Judge.

Plaintiff while on a public highway was struck by defendant's car, severely injured, and brings this action for resulting damages. Verdict and judgment for defendant. Plaintiff appeals.

Reversed.

FAVILLE, C. J., and EVANS, DE GRAFF and GRIMM, JJ., dissenting.Moore & Moore, of Guthrie Center, and F. T. Van Liew, of Des Moines, for appellant.

C. C. Putnam and Paul H. Williams, both of Des Moines, for appellee.

MORLING, J.

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 1 1/2 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: “There is quite a clear view from the west, as you approach the place of the accident. We could see quite a distance; the road is straight.” 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 head light on an automobile.” Repairmen were working between the two cars in the light furnished from the tower. Father Lalley testified: “I was the closer to the south side of the road. I was standing just inside the (his rear) fenders. Father Hanson (plaintiff) at that time was standing just outside the back fender on the south side. I said to him * * * ‘You better get in the car,’ * * * So he started for the car. After I saw him start for the car, the next thing I remember was a shower of glass that came over and the thing roared by. I did not hear the sound of an automobile horn or signal, or anything of that kind. I had no notice or knowledge of any approaching car. My back was turned toward the west. I thought at first it was the wind, but the other followed so rapidly I knew it was a car going by. * * * I stepped out to see where Father Hanson was and not seeing him there, I looked down the road and saw him about 40 feet ahead of my car; I saw Dr. Manning's (defendant's) car; it was just stopping; it was 40 or 50 feet in advance of Father Hanson. It turned around and came back on the south side of the road where Father Hanson was. * * * From the time I noticed the shower of glass until I saw this car stopping ahead of me could not have been more than a minute. * * * I would say (that the speed of the Manning car was) about 50 miles, at least. * * * This tower light on the repair car was a good light and took in my whole car. * * * The door of my car was not broken. I understand that the glass came from the door of the repair car; I understand it was open. * * * I just saw the light flash by and I immediately stepped out to see where Father Hanson was and he wasn't there, and I saw him down ahead of the car. I knew a light had flashed by me, but didn't realize it was an automobile. * * * I did not go west and signal oncoming traffic, neither did Father Hanson, or anybody.”

The repairman testified: “There was a noise and some glass flew; that is about all I saw until I got my eyes cleared out a little. * * * From the point where this car was parked to the west, it is down grade for a quarter of a mile, or better, I could have seen a car coming within a quarter of a mile * * * if the lights were on it. I don't recall seeing any car coming. We worked in there two or three minutes, when I heard a crash. * * * I heard a car go past. There was a flash of light. * * * Glass fell around there * * * The road is 66 feet wide; the graveled portion of the road, the place of the accident, is 21 or 22 feet. * * * The grass on the south side of the road, south of the Lalley car, is smooth and level.”

Plaintiff testified: “Two men got out of the repair car. Father Lalley was close to them; I was a little further out toward the south * * * he said, you had better get in the car * * * I had gotten to the door of his car, or about there, as I was facing his car, close enough to step in and as I was in that position, a flash of light from the left hand from the west attracted my attention, an extra flash of light, and that is all I knew until I became conscious again after the injury. * * * I saw no car coming, but it makes me feel sure going at great speed. * * * I didn't hear any noise of this approaching car; the flash of light on my left was the first thing that attracted my attention. * * * I was not glancing to the west until that flash of light came by. I think I was standing facing the north. * * * The light was the first thing that attracted my attention. * * * It was a continual brightening up in front of the tow car. * * * I realized the light was coming from an approaching car afterwards. * * * I did not hear any horn or signal of any kind. The light was the only thing that attracted my attention. The Manning (defendant's) car was the only car that came around on the right side of us that evening. Other cars had come and gone on the left hand side, both east and west.”

[1][2] 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: “The court did submit one allegation of defendant's negligence * * * the evidence was clear and undisputed that the defendant was negligent in that particular. He did not deny it. That being true, and the jury having a clear case of negligence on the part of the defendant, what difference would it make whether the court submitted to the jury half a dozen other alleged acts of negligence or not? One would be enough to entitle the plaintiff to recover if he was not guilty of contributory negligence. The jury knowing how fast the defendant was driving, and there being no dispute concerning his negligence in that particular, found for the defendant. The only issue that they could have found on was the question of contributory negligence. * * * Plaintiff therefore is not prejudiced by anything that he claims happened in the case.”

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. Railroad Co., 61 Iowa, 56. 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. Zeigenhein, 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.

[3] “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.” Spiker v. Ottumwa, 193 Iowa, 844-849, 186 N. W. 465;Brown v. Des Moines Steam Bottling Works, 174 Iowa, 715, 721, 156 N. W. 829, 1 A. L. R. 835;Altfilisch v. Wessel, 208 Iowa, 361, 367, 225 N. W. 862, 865.

On this record the specification of failure to have the car under control and...