Hedges v. Conder

• Decision Date: 08 April 1969
• Docket Number: No. 53200,53200
• Citation: 166 N.W.2d 844
• Parties: James W. HEDGES, Appellee, v. Ronald Gene CONDER, Appellant.
• Court: Iowa Supreme Court

Page 844

166 N.W.2d 844

James W. HEDGES, Appellee, v. Ronald Gene CONDER, Appellant.

No. 53200.

Supreme Court of Iowa.

April 8, 1969.

Eugene Davis, of Duncan, Jones, Riley & Davis, Des Moines, for appellant.

Oscar Jones, of Rockwell & Jones, Des Moines, for appellee.

MASON, Justice.

Defendant appeals from judgment on an adverse jury verdict in an action brought by James W. Hedges for injuries sustained when struck by defendant Ronald Gene Conder's automobile in the Des Moines business district.

Three issues were presented at trial: (1) Whether defendant was to a directed verdict, (2) Whether the court should have instructed that plaintiff was negligent as a matter of law and (3) Admissibility of the opinion of a witness offered as an expert as to speed based on tire marks.

Defendant in motion for directed verdict at the close of plaintiff's evidence asserted that plaintiff was negligent as a matter of law and was a proximate cause of his injuries. The motion was overruled. In renewing this motion at the close of all evidence defendant added as a ground that plaintiff's undisputed violation of a Des Moines municipal ordinance constituted negligence as a matter of law which was a proximate cause of his injuries. After this motion was overruled defendant moved to withdraw from the jury any issue as to his burden of proving plaintiff's negligence because of his violation of this municipal ordinance.

When this motion was denied defendant made timely request for instructions embracing this theory of his affirmative defense and objected to the court's refusal to give them.

The court overruled defendant's motion for judgment notwithstanding the verdict based upon his contention plaintiff's negligence was a proximate cause of his injuries as a matter of law and his alternative motion for new trial based on submission to the jury the issue of plaintiff's negligence by reason of violation of the municipal ordinance and state statute as a question of fact and in receiving over defendant's objection the expert's opinion as to speed.

Defendant's appeal challenges the correctness of these rulings:

Rule 243(b), Rules of Civil Procedure, provides:

'If the movant was entitled to have a verdict directed for him at the close of all the evidence, and moved therefor, and the jury did not return such verdict, the court may then either grant a new trial or enter judgment as though it had directed a verdict for the movant.'

I. Keosauqua Way in Des Moines is a six-lane asphalt street with two-way traffic running northwesterly and southeasterly. The northeast lane next to the curb is 17 feet wide, the other lanes 11 feet. The point of the accident giving rise to this lawsuit is within a business district having a speed limit of 25 miles per hour. The Reppert building where plaintiff was employed as a route salesman is located on the east side of Keo, just south of Eleventh Street, a narrow street having the appearance of an alley without sidewalks. There are no marked crosswalks on Keo at Eleventh Street.

Before the accident plaintiff had been employed at Reppert's Retail Merchant Delivery over thirty years. For the last three of those years it had been the company's policy to have plaintiff stop traffic four to five minutes each evening to assist its trucks in entering Keo from the Reppert building during the rush hour from about 4:45 to 5:30, a period when traffic on Keo is 'jam packed, about bumper to bumper'.

About 5:10 December 21, 1965, as it was getting dark plaintiff proceeded with a flashlight onto Keo to stop traffic. As he walked to the sidewalk there was no traffic in the curb lane. The weather was clear and dry. The street lights and car lights were on. He held up his hand, waved the flashlight and waited until the first car in the middle lane was completely stopped and then proceeded west to the white line dividing the curb lane from the second lane. Although traffic was moving in the inside or third lane, plaintiff was interested in stopping traffic only in the curb and middle lanes as the Reppert trucks were to turn right and go west on Keo.

There was a full line of traffic behind the first car plaintiff had stopped in the middle lane. As he took a step or two east back toward the building, into the curb lane to call the trucks to come out of the drive, he was struck.

Defendant, driving home from work in a 1963 Ford 6-passenger Country Sedan station wagon, had stopped at the stop light at Ninth Street behind a car. After the light changed he proceeded northwesterly on Keo in the second lane from the curb moving with the traffic approximately four to five car lengths behind the preceding car. He testified that as he approached the Reppert building area he noticed the brake lights of the preceding car come on, when two or three car lengths behind he started a gradual lane change into the curb lane. When approximately at the rear bumper of the car that was stopping or stopped defendant noticed a person moving east near the right front headlight of the other car. Defendant said he was unable to see plaintiff before that moment because the car that was stopping or stopped had obstructed his view. Defendant hit his brakes hard, the car slowed some but struck plaintiff with its front right center. Plaintiff went over the right front fender and was carried for a distance as the car continued to move after the impact, causing the injuries for which he seeks recovery. Defendant estimated his left wheel marks were 1 1/2 to 2 feet to the right of the white dividing line, putting him in about the center of the driving area of the curb lane.

An investigating officer called to the scene testified as to skid marks in the street beginning south of Eleventh. On the left side they measured 46 feet 11 inches and on the right side 49 feet 11 inches. From his investigation he was unable to determine the point of impact.

Plaintiff described his own position after he had taken a step or two back into the curb lane before the impact as facing the building or toward the curb lane with his head turned at a slight angle. He first caught a glimpse out of the corner of his eye of defendant's car as it pulled out of the middle traffic lane probably 40 to 50 feet from him 'coming at a fast rate of speed'. He estimated defendant's speed as over 25 or 30 miles per hour but refused to state how much. Plaintiff waved the flashlight across the pavement, held up his arms and waved for defendant to stop. Other than the arm waving plaintiff admits he did not attempt to move at all from the time he first saw defendant until he was struck.

Clarence McGuire, then employed by Reppert's, was the driver waiting for plaintiff's signal to come from the garage onto Keo. As an eyewitness he heard a tire squeal, glanced around, saw defendant's car coming and the impact. He estimated defendant's speed when he first saw him as 'roughly around 25, 30 miles per hour'.

Jack L. Behl, employed by the business next door south of Reppert's, was the other eyewitness. From this building he first saw defendant's car 'coming out of the lane, swerving into the middle lane' and estimated defendant was going between 25 and 35, but would not say it was 35 as he felt without getting in the car himself and trying it he would not know exactly.

Defendant's best judgment as to his speed was 25 miles an hour or 'it could have been a little more maybe. I don't know. I am not sure. I was moving along with the traffic.' On cross-examination defendant thought he could have been going between 25 and 30 at the most.

In addition to the direct evidence from plaintiff, defendant and two eyewitnesses, plaintiff offered the opinion of George W. Brown, as expert as to speed, that defendant's car was traveling 31 miles per hour at the time the skid marks began and 38 miles per hour when the brakes were first applied.

II. As indicated, defendant alleged in amended answer plaintiff was negligent 'in walking within Keosauqua Street or crossing same other than in a crosswalk in a business district in violation of Sec. 30--33.01 of the Municipal Code of Des Moines, 1962, * * *' and 'in failing to yield the right of way to defendant's vehicle when plaintiff was within Keosauqua Street other than in a marked or unmarked crosswalk, in violation of Section 321.328 of the Iowa Code and Section 30--33 of said Municipal Code.'

Other specifications of plaintiff's negligence asserted in answer are not involved in this appeal.

Section 30--33.01 of the Municipal Code, 1962, read into the record without objection, provides:

'Prohibited Crossing. Between adjacent intersections at which traffic-control signals are in operation, pedestrians shall not cross at any place except in a crosswalk. No pedestrian shall cross a roadway other than in a crosswalk in any business district.'

Section 30--33 provides:

'When Pedestrian Shall Yield. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

'Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to all vehicles upon the roadway.

'The foregoing rules in this section have no application under the conditions stated in Section 30--33.01 when pedestrians are prohibited from crossing at certain designated places.'

These municipal code sections are patterned after section 321.328, Iowa Codes, 1962, 1966, which provides:

'Crossing at other than crosswalk. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway except that cities and towns may restrict such a crossing by ordinance.

'Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead...