Jacobson v. Aldrich

• Decision Date: 08 March 1955
• Docket Number: No. 48670,48670
• Citation: 68 N.W.2d 733,246 Iowa 1160
• Parties: Ben JACOBSON, Appellant, v. Floyd R. ALDRICH, Appellee.
• Court: Iowa Supreme Court

Page 733

68 N.W.2d 733

246 Iowa 1160

Ben JACOBSON, Appellant, v. Floyd R. ALDRICH, Appellee.

No. 48670.

Supreme Court of Iowa.

March 8, 1955.

Smith & Hanson, Emmetsburg, for appellant.

Cory & Sackett, Spencer, for appellee.

THOMPSON, Justice.

Plaintiff's appeal is from an adverse judgment rendered on a verdict directed by the trial court, at the close of plaintiff's evidence. His suit was for damages allegedly sustained by him in a collision between automobiles owned and driven by the respective parties plaintiff and defendant at the intersection of Seventh and Union Streets in Emmetsburg. The collision occurred on February 23, 1953, during the daylight hours. The plaintiff was thoroughly familiar with the intersection.

Immediately prior to the collision, the plaintiff was driving east on Seventh Street and the defendant was proceeding north on Union. The defendant therefore had the directional right of way, under section 321.319, Code of Iowa 1950, I.C.A., the material part of which we quote:

'Where two vehicles are approaching on any public street or highway so that their paths will intersect and there is danger of collision, the vehicle approaching the other from the right shall have the right of way. * * *'

I. At the close of plaintiff's case in chief, defendant moved for a peremptory verdict by direction of the court, his motion being in eight numbered paragraphs. The result of all of them, however, was the contention that the plaintiff had failed to show his freedom from contributory negligence as a matter of law, and that he had failed to show any negligence of the defendant which was a proximate cause of the accident and injuries sustained. The court sustained the motion 'as to each and every ground thereof.' One of plaintiff's assigned errors is that the court should have ruled separately on each ground of the motion to direct. Authorities cited are In re Van Dyke's Estate, Iowa, 65 N.W.2d 63, and Melsha v. Tribune Publishing Co., 243 Iowa 350, 51 N.W.2d 425. In neither of these did we actually reverse because of error arising from the failure of the court to rule separately on each ground of the motion. There is warning language; it goes no farther. Nor could we hold that error, if it be such, to rule generally on a motion instead of specifically on each ground, is present here. The court did rule on each ground. It could have made its ruling no more specific if it had referred to each ground by number; it said clearly that each ground was sustained. No one was left in doubt that the court had sustained each ground. Possibility of error arises when the court merely sustains a motion, without specifying whether upon all grounds or certain specific ones. There was no error at this point.

II. The court having sustained the motion upon all grounds, it remains to determine whether it was correct in its ruling. It is well settled that if any of the grounds of the motion were well taken, the court's ruling must be affirmed, even though it may have been mistaken in granting other grounds. Wentland v. Stewart, 236 Iowa 258, 261, 18 N.W.2d 305, 306. Since we agree that the motion was well taken upon the question of failure of the plaintiff to furnish substantial evidence of his freedom from contributory negligence, it will not be necessary to discuss or to determine the soundness of the ruling as applied to the other grounds. We must, however, go into the evidence at some detail for the purpose of pointing out why we have concluded plaintiff failed to carry the burden of producing evidence that no negligence on his part contributed to the accident and to his injuries.

III. It seems superfluous to repeat again the rule that when we are considering motions such as the one involved here the evidence must be given the most favorable interpretation for the plaintiff it will reasonably bear. There is also the principle, equally well settled in Iowa law, that the burden is upon the plaintiff to make an affirmative showing of his freedom from negligence which in any way contributed to his damage and injuries. Another rule often repeated is that ordinarily the question of contributory negligence is for the jury; it is only in 'very exceptional cases' that a verdict may be directed because contributory negligence appears as a matter of law. Fitter v. Iowa Telephone Co., 143 Iowa 689, 693, 121 N.W. 48, 50; Thompson v. Waterloo, Cedar Falls & Northern Railroad Co., 243 Iowa 73, 78, 79, 50 N.W.2d 363, 365, 366; Lawson v. Fordyce, 234 Iowa 632, 641, 12 N.W.2d 301, 306; and cases cited therein. We must examine the evidence adduced in the case at bar in the light of these rules and endeavor to make the proper application.

IV. Certainly the defendant had the directional right of way. This is not an absolute right, but relative. It is qualified by section 321.288, Code of Iowa 1950, I.C.A., which so far as material says:

'The person operating a motor vehicle * * * shall have the same under control and shall reduce the speed to a reasonable and proper rate:

* * *

* * *

'3. When approaching and traversing a crossing or intersection of public highways * * *.'

There is additionally the duty of all parties to exercise reasonable care to keep a proper lookout at all times, particularly when approaching and traversing an intersection. As in all cases, this duty is in proportion to the danger reasonably to be anticipated.

Nevertheless, the directional right-of-way statute has meaning. It does not depend for its effect upon which car first entered the intersection, nor upon which car struck the other, nor at what point upon the car or in the intersection. The statute is intended to promote safety, to give motorists a guiding rule by which rights at intersections may be determined. It does not contemplate a race for the intersection; if at their respective distances and speeds the two cars approaching at right angles will collide it is the duty of the one on the left to give way.

Clearly the plaintiff did not yield the right of way to the defendant. The fact that a collision occurred proves that much. But it is plaintiff's major contention that at the time he looked to his right, which he says was a point about 50 feet west of the intersection, he did not see the defendant's car approaching; and, by a considerably involved process of computation of distances and time he attempts to show defendant must have been at that time so far away that in order to reach the intersection in time to collide with defendant's vehicle he necessarily traveled at a rate of speed in excess of 25 miles per hour, the maximum speed limit permitted by section 321.285, Code of Iowa 1950, I.C.A. Reliance then is placed upon the principle that all travelers on the highways have a right to assume others using them will obey the law and the dictates of reasonable care. Hogan v. Nesbit, 216 Iowa 75, 82, 246 N.W. 270, 273. It is therefore reasoned there is substantial evidence of freedom from contributory negligence on the part of the plaintiff, since he says he looked and did not see and so defendant must have approached at an unlawful and perhaps unreasonable speed. Plaintiff by his argument attempts to place himself within the factual situations and so within the law enunciated in such cases as Hutchins v. LaBarre, 242 Iowa 515, 47 N.W.2d 269; Falt v. Krug, 239 Iowa 766, 32 N.W.2d 781; Rhinehart v. Shambaugh, 230 Iowa 788, 298 N.W. 876, and Lathrop v. Knight, 230 Iowa 272, 297 N.W. 291. Each of these cases turns upon the fact that the driver on the left as he approached the intersection testified he looked to his right for a considerable distance and saw no vehicle approaching. It was therefore concluded the car on the right must have traveled at an unlawful speed, or at least there was substantial evidence the jury could so find and could determine the left-hand driver was not guilty of contributory negligence. He who looks to his right and sees no vehicle approaching within a distance which could be covered at a lawful and prudent speed so as to cause a collision at the intersection is not guilty of contributory negligence as a matter of law if he assumes there is no danger of such an accident. This rule applies also if he sees a car approaching on his right, but at such a distance a lawful speed would not bring it to the intersection in time to cause a collision. It is the rule of Hutchins v. LaBarre, supra, and the other cases relied upon by the plaintiff-appellant here.

But factually the case at bar is not in point with the cases just referred to. It is true the defendant testified that he looked to his right when he was approximately 50 feet west of the intersection, and could see all the way to the next intersection south and there was no car in sight. The weather was clear. There was some snow on the streets. Union Street is 26 feet wide, and 7th Street 20.6, each between the curbs. They are residence streets. The plaintiff testified that at a point 50 feet west of the intersection, where he looked, he could see 300 feet to the next intersection. He was traveling at 15 miles per hour when he made his observation to the right, and saw no car approaching.

No claim is made that defendant's car was beyond, or south of, the next intersection south of Union and Seventh. It is plaintiff's theory that defendant was in the block immediately south of the intersection of these streets, but that plaintiff's view was obscured by a telephone pole located in the curb 50.2 feet west of the intersection, which might have aligned with some trees along the curb on Union Street or in the yard of the house on the southwest corner of the intersection so as to obscure the view of about 60 feet of the block of Union south from Seventh. This section would be immediately south from the alley in the middle of the block. The block is 330 feet long, so that 165 feet of Union Street north of the alley and extending to the intersection with Seventh would...