Howie v. Ryder & McGloughlin

• Decision Date: 05 May 1953
• Docket Number: No. 48119,48119
• Citation: 244 Iowa 861,58 N.W.2d 389
• Parties: HOWIE v. RYDER & McGLOUGHLIN et al.
• Court: Iowa Supreme Court

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 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 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 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 flasher signal.

Police officers, who arrived at the scene within minutes after the collision, state that there were heavy tire skid marks extending back on the Highway for 90 feet from the point of impact.

Mrs. Hanlan, who was in the Hanlan car, said that she observed the truck as it approached the junction. Its head lights were lighted and it was at all times in the south or right hand lane of the Highway. She saw Plaintiff's car approaching at a speed estimated at 70 to 80 miles per hour. That when Plaintiff's car hit the truck it up-ended the rear end thereof, throwing it into the side of their car. Mr. Hanlan's testimony is similar except that he places Plaintiff's speed at 60 miles per hour.

James Howland, also an occupant of Plaintiff's car, states that prior to the accident, they had told Plaintiff not to drive so fast. That he saw the truck when it was about 300 feet ahead and that it was in the south lane of the Highway. Someone in the back seat shouted to watch out for the dump truck and then they crashed.

Defendant Shaffer...