Harrington v. Fortman

• Decision Date: 06 April 1943
• Docket Number: 46033.
• Parties: HARRINGTON v. FORTMAN et al.
• Court: Iowa Supreme Court

8 N.W.2d 713

233 Iowa 92

HARRINGTON v. FORTMAN et al.

No. 46033.

Supreme Court of Iowa

April 6, 1943

Jordan & Jordan, of Cedar Rapids, for appellant.

Perrine & Albright, of Cedar Rapids, for appellees.

BLISS Justice.

The damaged truck was owned by Mueller and was being driven at the time by his driver, Frakes, but the entire outfit was under lease to the plaintiff and was being so operated. The vehicle consisted of a tractor-trailer combination, thirty-five feet in length and weighing eight tons, when empty. At the time it was loaded with nine tons of butter. The accident, as we will call it for convenience, occurred at shortly past 8 o'clock in the evening of August 4, 1939. It is spoken of in the record as between daylight and darkness. All vehicles involved had their lights on. The accident occurred about four miles east of Grinnell on Highway No. 6 at its intersection with Highway No. 63. Both are paved. The first extends east and west across the State, and the second extends north and south. The entrance upon No. 63, to the north and left, as one travels east, is by a rather wide curve. The truck was traveling east and was going to continue east on No. 6. The defendants' car, owned by Mr. Fortman a Lincoln Zephyr, and driven by his wife, was also traveling east and had been following the truck until a short time before the intersection was reached. The Fortmans intended to turn north on No. 63.

While the testimony is somewhat contradictory on some matters, it fairly appears that from the intersection where No. 63 curves north and diverges from No. 6, it is 1,200 feet west on No. 6 to a place where the pavement has a slightly downgrade to the intersection. When defendants were about 200 feet farther west of this higher point and were approaching the truck from the rear, the driver of the truck motioned for them to pass him. He testified that he did so, and that the truck was traveling about 40 miles an hour, and that the defendants' car passed him at a speed of between 45 or 50 miles an hour. Mr. Fortman at one time testified that the speed of his car might have been 60 miles an hour. After passing the truck defendants' car drove back to the right side of the road and there traveled east for a short distance and passed a "slow" sign on the south side of the highway. This sign was 630 feet west of the intersection. Of this passing, Frakes, the driver of the truck testified "I was at the time in motion myself, traveling about 40 miles an hour. She came up from behind me and went around me when she saw this large Slow sign that loomed up. She cut in front of me when she was not more than about five feet past. Then I tapped my air brakes enough to slow me down. After she cut in in front of me she proceeded east but gave no signal of intention to stop until she stopped dead when I was not more than ten feet behind her. At that time there was on-coming traffic in the person of Cale Ewing and his brother coming around the curve. I could see the head lights. *** So when she stopped ten feet in front of me I saw this on-coming truck. (It was coming west on No. 6.) Had I proceeded straight ahead I would have struck her and to avoid striking her I swung to the right trying to go around her on the berm. *** My car turned over on its right side but I did not strike this lady. *** The on-coming truck I have described came to a stop clear by the intersection seventy-five feet past the intersection of 63 on the opposite side of the road, passing the point of my accident. He swerved clear over on his right shoulder." Frakes also testified that the defendants' car ran two car lengths past the intersection, and came to a stop diagonally across the center line. The shoulder of No. 6 onto which the truck turned was soft from recent rains and the truck turned on its side about even with the standing car of the defendant. Frakes was familiar with the road and so was Mr. Fortman. Frakes also testified: "I didn't have time to sound a horn. The Fortman car had come to a stop so quick I could not do anything. I was so close behind her I did not have time to sound the horn."

Mrs Fortman's version of what took place is thus told by her: "I passed this truck and when I was back on my own side of the pavement, we went some distance and I came to the slow sign, I slowed my car by lifting my foot from the accelerator and stepping, giving signals with my foot on the pedal, the brake pedal, jiggling it up and down to give him warning that I was going to do something, and at the same time extending my left hand and arm for a left-hand turn, and as I went on down near the intersection I saw traffic approaching from the east going west too close, I thought, to the intersection where I was supposed to turn north on 63, that I did not think I could make it safely, I slowed my car down gradually until I saw I could not make it and lowered my hand and arm for a stop and gradually stopped my car, and in a second or two after I stopped, at least one car had passed, I heard a rushing sound to the right, naturally I glanced that way and it was this truck right almost by the side of the car passing right by it and it went into the ditch. *** I passed the truck *** around 200 feet from where the down grade started to the intersection I was traveling around 50 miles an hour *** I did not actually apply my brakes before the slow sign. I just jogged them to work the stop lights which brighten when you step on the pedal. They were working. They worked after the accident. The hand signal I gave by extending my hand and arm out horizontally to the left through the left window starting at the slow sign west of the intersection. As I neared the intersection and saw it was not going to be safe to cross until the on-coming traffic had passed, then before I stopped my car, of course, I lowered my arm to the side of my car and gradually came to a stop. I had my hand and arm out from the slow sign down to the stop. I came to a stop where you normally turn into 63 in the intersection. The pavement is a gradual down grade from the slow sign clear to the intersection. I applied my brake to stop it. At the time I stopped I was on the right hand side of No. 6 and headed east." On cross examination she testified: "The tail lights on my car are quite large, about the size of a baseball of solid red glass. They get brighter and duller with no markings on them. Q. Any sign says stop on it? A. I don't know. *** I held out my left hand because I was going to make a left turn into the intersection. I started giving my left hand signal of my intention to turn on 63 at the slow sign which was six hundred and thirty feet back, and I kept my hand out until I lowered it for a stop or for six-hundred and thirty feet. I was in the intersection when I decided to stop.

I didn't stop before because I had no occasion to stop; but I gave the signal to stop and I was driving into the intersection immediately on seeing that traffic was too close to make it. I was signalling for a stop just as I was entering the intersection. I had so conducted myself that people behind would think I was going to turn left and then I changed and showed them I was going to stop. When I stopped I was on 6. I was still on 6 ready to enter 63. *** Right where a car would stop if it was making the turn on left, where they would start to turn into 63. No part of my car had gotten into 63 *** I was just ready to turn across the pavement on to 63. I would not have to make any moves to go across."

Plaintiff alleged in his petition that the negligence of the driver of defendant's car was as follows:

1. In failing to give a hand or arm signal by extending hand and arm downward before making the stop.

2. In driving past the intersection and then suddenly stopping without due regard to the condition of the traffic and the surface of the highway.

3. In stopping said motor vehicle suddenly in the path of the plaintiff's truck at a place where she could not make said stop without endangering the life and property of other people and other vehicles on the highway and especially the motor vehicle of this plaintiff.

4. In stopping the said automobile at an angle in the path of the plaintiff's vehicle.

Defendants denied generally the allegations of the petition as amended, and alleged that plaintiff's negligence in not having his truck under control, and not driving it at a proper and lawful speed under the existing road and traffic conditions, and in approaching an intersection, and in failing to observe the assured-clear-distance statute, was the sole proximate cause or a contributing cause of the damage to plaintiff's truck.

At the close of plaintiff's evidence, the defendants moved for a directed verdict. It was overruled. A similar motion was made by them at the close of all of the evidence. It was also overruled. Defendants then moved to withdraw each of the four specifications of negligence in the petition. The court said "I think number one will be withdrawn." The defendants then said: "Then we will amend our motion to strike out the portion of specification of negligence number 2, 'In driving past the intersection and then' ***. The court replied that the ruling thereon would appear when the matter was submitted. In the statement of the petition and plaintiff's cause of action, in the instructions, the court stated that a car driven "by the defendant, Nellie E. Fortman pulled around plaintiff's vehicle and proceeded also in an easterly direction and suddenly stopped in the path of plaintiff's vehicle. That such defendant gave no signal but stopped so suddenly that plaintiff's driver, Raleigh Frakes, was forced to leave the road in order to avoid hitting it and thus went into the ditch." But in stating the...