Hayungs v. Falk
| Decision Date | 09 April 1947 |
| Docket Number | 46936. |
| Citation | 27 N.W.2d 15,238 Iowa 285 |
| Parties | HAYUNGS v. FALK. BARTH v. SAME. |
| Court | Iowa Supreme Court |
Carl F. Conway, of Osage, James H. Graven, of Greene, and R. W. Zastrow, of Charles City, for appellants.
W G. Henke, of Charles City, and John A. Senneff, of Mason City, for appellee.
Plaintiff the administratrix of the estate of Arthur Hayungs, deceased brought an action against the defendant, Conrad Falk claiming negligence by him which resulted in a truck-automobile collision and the wrongful death of her husband. Harry Barth, the owner of the truck involved, sought recovery against the defendant for damages to the truck. Falk counterclaimed in both actions and the court upon motion consolidated the two cases. Upon submission of the case to the jury plaintiffs' claims and defendant's counterclaim were disallowed and a verdict was returned in favor of the defendant, Falk. Judgment was thereafter entered against the plaintiffs for costs. The respective parties, plaintiffs and defendant, filed motions for a new trial, which were overruled. The plaintiffs and the defendant have appealed. The plaintiffs filed their notice of appeal first and will be hereinafter referred to as the appellants and Falk will be referred to as the appellee.
The accident occurred about 1:15 a. m. on May 25, 1945 on Highway Number 9 in Mitchell County, Iowa at a point approximately 1 1/2 miles east of Osage. This highway is paved, with two lanes, and marked with a line in the center. The record which we shall summarize discloses the following facts.
About midnight of May 24, 1945 Arthur J. Hayungs, who died as a result of the accident, and Roy Krambeer left Greene, Iowa enroute to Minneapolis as the drivers of two trucks owned by Harry Barth. The Krambeer truck proceeded ahead of the Hayungs truck. The two trucks were proceeding in a westerly direction. The Hayungs truck became stalled in the right traffic lane of the pavement at the point where the accident later occurred. Krambeer observed that Hayungs was not following him and stopped at an intersection east of Osage for the purpose of waiting for the Hayungs truck to catch up with him. Krambeer remained at this intersection some three or four minutes during which time two cars passed him. A third car stopped and informed Krambeer that the driver of the second truck wanted a fire extinguisher. Krambeer turned around and returned to where the Hayungs truck was stalled. He gave Hayungs a fire extinguisher and two fusees. The fire extinguisher was used in an effort to start the truck by drying out the motor. Krambeer then proceeded to an intersection beyond where the truck was stalled, again turned around and drove back and parked in front of it and then backed his truck in close to the one Hayungs had been driving. About this time Hayungs handed Krambeer the fire extinguisher and told him that it would not dry out the motor. Hayungs having obtained a rope was trying it apparently to his truck while Krambeer was moving his truck closer in front of the stalled one so it could be towed. It is further shown that for a brief period of time Krambeer was out of his own truck and he stated that as he walked along the Hayungs truck he could see that one of the fusees was sticking out over the traffic line. He stated that Hayungs had put them in the back end of the truck and they were both lighted when he came back. Krambeer stated that there was a burning light of either corner on the back of the Hayungs truck and three across the middle in kind of a cluster set back in the frame of a box. The record further discloses that at or about the time Krambeer was out of the truck he heard the roaring of a motor and he testified that he said to Hayungs, 'We had better get out of here.' He also testified that he jumped and ran out of the way. His testimony also discloses that it was at that time the crash occurred and when he looked to see where Mr. Hayungs was he observed that he was standing up pinned in between the two trucks. He further testified that he then moved his truck ahead in order to get Hayungs out and that on moving it Hayungs slipped down on the bumper. The Falk automobile, also traveling west on the right hand side of the pavement, had crashed into the rear of the Hayungs truck and had driven it ahead so that Hayungs was crushed between the two trucks. It had been raining prior to the accident and the dirt shoulders of the highway were soft and muddy.
Krambeer also testified that there were no flares set out although the Hayungs truck was equipped with them. Krambeer was asked on cross-examination how long it takes to put out flares and replied, 'Possibly three or four minutes, maybe five.' He further testified that the time that expired after he passed the truck on returning to it and in proceeding to turn around and place his truck where he could assist Hayungs would be about 10 minutes. Krambeer also testified that the fusees he gave to Hayungs had a spike on one end and that they were stuck into the wood of the truck. He said one was placed at the rear, the other at the southeast corner in back of the truck and that it stuck out over the traffic line. It was further testified by Krambeer that on his returning the second time to the Hayungs truck about one-half of the burning life of the fusee was left. The record discloses that at and prior to the time of the accident it was raining. It is also shown that the Falk car was driven underneath the Hayungs truck to the extent that it was clear up to the windshield. The windshield was bent back and the door was jammed on the right side.
The verdict returned by the jury was a general one for the appellee, consequently all claimed errors which have been preserved and argued must be considered in connection with the respective appeals of the parties. We shall first give consideration to the claimed errors upon which plaintiffs-appellants contend there is justification for a reversal.
I. It is claimed that the trial court erred in giving the instruction it did regarding the placing of lighted fusees and flares. Section 5034.57, 1939 Code, is in part as follows:
'Whenever a motor truck is stopped upon or immediately adjacent to the main traveled portion of a highway outside of a business or residence district, during the times when lighted lamps must be displayed, then the driver or other person in charge of such vehicle shall, * * *, cause a lighted fusee to be immediately placed on the roadway at the traffic side of such vehicle; as soon thereafter as possible, and in any case within the burning period of the fusee, three lighted flares shall be placed on the roadway, * * *.' The instruction given by the court in part stated: 'The undisputed record in this case shows that Arthur J. Hayungs violated this statute in that neither he nor any one else put a lighted fusee on the roadway and although the said Hayungs had ample time to place the flares, as provided by statute, failed so to do and by reason of such failure he was guilty of negligence as a matter of law, and you are told that if such negligence contributed in any degree or in any way to the accident in question, neither of the plaintiffs can recover herein and in that case your verdict must be for the defendant.'
The statute previously quoted, with some changes not material here, now appears as section 321.448, 1946 Code.
The record in this case shows that the fusees were stuck into the rear of the truck and that one of them protruded out over the traffic line. Appellants argue that placing the fusees on the truck was a compliance with the statute which requires them to be placed on the roadway. Section 5000.01(47), 1939 Code, section 321.1(50), 1946 Code defines 'roadway' as 'that portion of a highway improved, designed, or ordinarily used for vehicular travel.' Where the highway is paved only the paved portion would seem to fall within our statutory definition of 'roadway.'
We are unable to accept the appellants' argument. There is no evidence that the fusee could not be placed on the roadway as the statute required. We think therefore it was proper for the court to instruct the jury that Hayungs violated the statute in not placing fusees on the roadway and in his respect was negligent. It was also proper for the court to permit the jury to determine whether such negligence contributed to the collision.
The court instructed there were no flares placed as provided by statute and that by reason thereof Hayungs was guilty of negligence as a matter of law and that if such negligence contributed in any degree or in any way to the accident neither of the appellants could recover. The statute provides that three lighted flares should be placed on the roadway 'as soon thereafter as possible, and in any case within the burning period of the fusee * * *.' There is no dispute that flares were not placed. There is evidence that the fusees placed on the truck would burn for approximately 15 minutes and it is further shown that they had burned about half way down at the time of the collision. The driver of the truck who had the duty of placing flares was killed and could not testify as to what difficulties may have arisen to justify the delay. We hold that the jury should have been given the privilege of passing upon the question as to whether the time contemplated by statute for placing the flares had expired at the time the collision occurred. The very use of the words 'as soon thereafter as possible' indicates that the legislature contemplated there might be circumstances which would prevent the flares being put out immediately. It is our conclusion that the court erred in instructing that Hayungs was guilty of negligence as a matter of law because of...
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