Howie v. Ryder & McGloughlin, 48119

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HAYS; SMITH
• Citation: 244 Iowa 861,58 N.W.2d 389
• Parties: HOWIE v. RYDER & McGLOUGHLIN et al.
• Docket Number: No. 48119,48119
• Decision Date: 05 May 1953

Page 389

58 N.W.2d 389 244 Iowa 861 HOWIE
v.
RYDER & McGLOUGHLIN et al. No. 48119. Supreme Court of Iowa. May 5, 1953.

William T. Connery, O'Connor, Thomas, McDermott & Wright, all of Dubuque, for plaintiff-appellant.

Kenline, Roedell, Hoffmann & Reynolds, of Dubuque, for defendants-cross-appellants.

HAYS, Justice.

This opinion supersedes that in 56 N.W.2d 142. A rehearing was granted on this appeal and the opinion therein is set aside.

Plaintiff obtained judgment for damages arising out of a collision between his car and defendants' truck. Defendants' motion for a judgment notwithstanding the verdict was overruled but their motion for a new trial was sustained. Both parties have appealed.

1. Defendants' cross-appeal presents the single issue as to [244 Iowa 863] plaintiff's freedom from contributory negligence, and will first be examined.

The collision occurred in a suburban district of Dubuque, Iowa, at the junction of Highway 20 and Fremont Avenue. Both are paved. Highway 20 is 18 feet wide and runs east and west. Fremont Avenue is 36 feet wide where it joins the Highway, and runs southwest at an angle of

Page 390

about 45 degrees. On the south shoulder of the Highway and 52 feet west of the west curb of Fremont Avenue is a regular 'speed limit 20' sign. 44 feet further west is a 'traffic signal ahead' flasher signal. On Fremont Avenue, where it joins the Highway, is a 'stop' sign and also a street light. Both the flasher signal and street light were lighted at the time in question.

On September 21, 1949, about 7:30 p. m. Plaintiff was driving a Packard car, weight about 3,700 pounds. Defendant Shaffer was driving a Dodge ton and a half truck, weight about 7,200 pounds and of a grayish color. Both were proceeding east on the Highway. It was dark but clear and the pavement dry. Just as the truck reached the junction with Fremont Avenue, and while in the act of turning right thereon, plaintiff's car hit the right rear end thereof with the resulting damages. At the time of the collision, a car driven by a Mr. Hanlan had stopped at the sign on Fremont Avenue, prior to entering upon the Highway. Its lights were lighted. After the collision, the plaintiff's car was headed southeast on Fremont Avenue in an almost demolished condition. Defendants' truck was some 19 feet east of the west curb of Fremont Avenue; and the Hanlan car had been shoved east and south some 35 feet, and onto the east curb of Fremont Avenue. As to the foregoing facts, there is little, if any, dispute in the record.

As to other parts of the record, there is a conflict. Plaintiff states that he was driving about 60 miles per hour as he approached from the west and observed the flasher signal. That he removed his foot from the gas feed and his car had slowed to 40 miles per hour as he passed the signal. His head lights were on and lighted the entire pavement in front for a distance of from 300 to 500 feet. That he was constantly watching the road ahead. That he then saw the front right side of the truck as it [244 Iowa 864] crossed over onto the right lane of the Highway. He set his brakes skidded the wheels for 50 feet, and hit the right rear end of the truck as he tried to pass it on the right side. He states he observed no speed signs along the south shoulder of the Highway and saw no lights on the truck. He estimates his speed as 20 miles per hour at the time of the impact, basing same upon the force thereof.

Riding in the rear seat of Plaintiff's car were four Loras College students. One of them, William Ward, was a witness for Plaintiff. He states that he saw no lights or reflectors on the truck. That he saw the truck just before the impact and that it was straddling the center mark on the Highway. He places the speed at 40 miles per hour as they passed the...