In re Green's Estate

• Decision Date: 15 March 1938
• Docket Number: 44192.
• Citation: 278 N.W. 285,224 Iowa 1268
• Parties: In re GREEN'S ESTATE. v. GREEN. DENNY
• Court: Iowa Supreme Court

278 N.W. 285

224 Iowa 1268

In re GREEN'S ESTATE.

DENNY v. GREEN.

No. 44192.

Supreme Court of Iowa.

March 15, 1938

Appeal from District Court, Keokuk County; Frank Bechly, Judge.

Action for damages for injuries growing out of an automobile accident. The trial court directed a verdict for the defendant. Plaintiff appealed.

Reversed.

Jones & White and Bailey C. Webber, all of Ottumwa, and C. J Lambert, of Sigourney, and H. S. Life, of Oskaloosa, for appellant.

Robert J. Shaw, of Sigourney, for appellee.

STIGER, Justice.

Plaintiff brought this action to recover damages for injuries to his person and property growing out of an automobile collision between the plaintiff and the defendant's intestate on July 28, 1936, about 4:00 o'clock in the afternoon. The collision occurred in the intersection of two township roads. Plaintiff was approaching the intersection on the east and west highway from the east in his V-8 Ford sedan driven by his son, Waldo Denny. The defendant's intestate, Floyd H Green, was driving his Terraplane automobile south on the north and south road approaching the intersection from the north. The collision occurred on the west side of the intersection. At the close of the plaintiff's testimony defendant filed a motion for a directed verdict. The grounds of the motion material to this appeal are as follows:

" (1) Because the plaintiff has wholly failed to show by a preponderance of the evidence that the plaintiff and claimant was free from contributory negligence.

(2) Because the record affirmatively shows that the plaintiff and claimant was negligent and his negligence contributed to injury complained of.

(3) Because the plaintiff and claimant did not use ordinary care in his use of the highway, at the time and place in question.

(4) Because there is absolutely no showing or attempt to show that the failure on the part of the plaintiff and claimant to sound a signalling device did not cause or contribute to cause the accident in question, and the resulting damage.

(5) Because the undisputed evidence is that the plaintiff's and claimant's car did not sound an adequate signalling device required by the laws of the State of Iowa as to approaching the intersecting highway, where the collision occurred, where his view was obstructed and where he was familiar with obscurity existing at said intersection."

The motion was sustained on the ground that plaintiff was guilty of negligence which contributed directly to the injuries complained of as a matter of law. In his statement to the jury, the trial court said: " This is not a question as to whether or not the driver of the Terraplane was negligent, as to that there is sufficient evidence to go to the jury, but it is a question as to whether or not the plaintiff, as it is his duty under the law, has shown that he was free from any negligence that contributed to the injury. The Court thinks and there is no evidence before the Court, that if such a signal had been given by the claimant's car at a reasonable time before entering the intersection, such signal might or would have warned the car approaching from the north, and therefore that the failure to sound the signal in some degree directly contributed to the injuries, and under the law in our State, if that is true, there can be no recovery by the claimant or plaintiff as against the defendant. Therefore, the Court has sustained the motion for a directed verdict in this case."

The sole question before us for determination is whether the trial court erred in holding that the plaintiff was guilty of contributory negligence as a matter of law. North of the intersection the north and south highway is level for a distance of about 225 feet. It then proceeds north on a rather abrupt downgrade for some distance and then continues north on an upgrade. Looking north from the east side of the intersection a car can be seen for a distance of about 275 feet. There is then a distance of about 250 feet north where a car is not visible from the intersection. A car approaching from the north and down the upgrade could be seen 528 feet from the intersection and would then be invisible until it reached a point about 275 feet from the intersection.

Code, § 5043, provides that an adequate signaling device shall in all cases be sounded on approaching intersecting highways in the country where the operator's view is obscured.

It is conceded that Waldo Denny, who was driving plaintiff's car and was familiar with the intersection, did not sound the horn as he approached the intersection and that his view as he approached the intersection was entirely obscured; it being impossible to see a car approaching from the north because of a cornfield and trees in the north east corner of the intersection. This violation of Code, § 5043, constituted negligence per se, and the question is whether, under the circumstances, it can be said that this negligence was contributory negligence as a matter of law.

There was a clear view to the north from the time plaintiff's car reached the east edge of the intersection. Plaintiff testified that he first looked north when in line with a grader ditch on the east side of the north and south highway and at that time there was no car in sight. He then looked south and observed no car approaching. He again looked to the north when his car was about in the middle of the intersection, at which time he saw defendant's car, which was then about 150 feet north of the intersection, approaching the intersection at a speed of from 70 to 80 miles per hour. When he first saw the car he thought they could get through the intersection before defendant's car would reach them. When the plaintiff's car entered the intersection it was traveling at a speed of 5 or 6 miles per hour. Plaintiff's car traveled about 33 feet from the time the witness first looked north until the collision occurred. The witness further testified that his car traveled about 18 feet between the two times he looked north; that the Green car came toward...