Jakeway v. Allen
| Citation | 226 Iowa 13,282 N.W. 374 |
| Decision Date | 15 November 1938 |
| Docket Number | No. 43804.,43804. |
| Parties | JAKEWAY v. ALLEN. |
| Court | United States State Supreme Court of Iowa |
JAKEWAY
v.
ALLEN.
No. 43804.
Supreme Court of Iowa.
Nov. 15, 1938.
Appeal from District Court, Lucas County; Elmer K. Daugherty, Judge.
Action at law to recover damages for personal injuries sustained by plaintiff in a collision between plaintiff's motorcycle and defendant's automobile. Verdict and judgment for plaintiff and defendant has appealed.
Reversed.
MITCHELL, J., dissenting.
[282 N.W. 375]
Hal W. Byers, of Des Moines, J. W. Kridelbaugh, of Chariton, and McMartin, Herrick, Sloan & Langdon, of Des Moines, for appellant.
G. C. Stuart and A. V. Hass, both of Chariton, for appellee.
HAMILTON, Justice.
The collision occurred about 4 P.M. on June 18, 1936, on Highway No. 34 at a point approximately 11 miles east of Chariton, Iowa. The highway runs east and west and the pavement is 18 feet wide with two black lines to mark the center. The plaintiff was riding his motorcycle along the road in an easterly direction and defendant was driving his Pontiac car in the opposite direction. They were approaching each other from opposite sides of what is referred to, in the record, as a hill, the west slope of which has a very gradual rise of about 22 feet in 1,100 feet while the east slope is considerably steeper having a rise of about 32 feet in 850 feet. The east 250 feet of the west slope of the elevation is almost level, the rise being only 93/100 of a foot in this 250 feet. It was on this 250 feet at the crest of the west slope that the collision took place. The testimony, as to the location of the two vehicles, is in hopeless conflict. According to plaintiff's version, he first saw the top of Allen's car when it was 200 feet east of him slightly to the south of the middle of the pavement. At that time, plaintiff's motorcycle was traveling some 3 or 4 feet from the south edge of the pavement. Plaintiff immediately throttled his vehicle, by taking his foot off the gas, and gradually reduced the speed to about 40 miles an hour. When he reached a point 150 feet from Allen's car, he saw it was entirely over on the south side of the black lines in the center of the pavement coming west toward him, the course of defendant's car veering two or three degrees toward the south traveling slowly. Plaintiff, in order to avoid a collision, then turned his motorcycle to the left toward the center of the pavement with the idea of going to the north or wrong side of the Allen car. Both vehicles proceeded in this same general course until plaintiff had traveled another 100 feet or until they were within 25 feet of each other. Then suddenly, defendant turned his car abruptly to the right in a northwesterly direction right across the black lines; at the same time, plaintiff pulled to his right but not in time to avoid the collision. The front part of his machine struck the left rear fender and back bumper of defendant's car throwing plaintiff to the pavement. Plaintiff also testified that the left rear door of defendant's car was open and swung back and the handlebars of his motorcycle struck against this door and this turned his front wheel into the car fender. He says his motorcycle was never north of the center black lines. Two witnesses for plaintiff testified to circumstances and observations which tend to corroborate plaintiff's story. Plaintiff did not sound his horn as he approached the top of the hill.
On the other hand, defendant, who lived north of this highway a few rods east of the scene of the accident and who was on this day putting up hay from a field on the north side of the road west of his house and hauling the hay out of this field down the pavement to his home, was driving his car from home to the field where the hired man and defendant's 15 year old grandson had already gone with the team and rack.
[282 N.W. 376]
He testified positively that his car was never south of the center lines; that he turned out of the lane onto the north half of the pavement and proceeded west about 15 or 20 miles an hour to the right of the center and stayed there until he got within 25 or 30 feet of the motorcycle, at which point it turned its course directly toward his car; that he then pulled right to the northwest intending to get over on the north shoulder out of the way; that at the moment he was struck he had succeeded in getting the front wheels of his car out on the north shoulder. He also testified the door was not open, but, on the contrary, it was closed and locked; that sometime prior to the collision he had driven his car into the garage with this left rear car door open and torn it loose and when it was opened it would fall out and because of this condition it was always kept closed and locked. The grandson, who saw the collision from the hay wagon, corroborates Allen on both of these propositions and two disinterested witnesses, one of whom was the deputy sheriff of Lucas County, testified to physical facts and circumstances strongly corroborating Allen's story. Seldom have I, the writer of this opinion, in thirty-five years' experience come upon a case where the stories were so contradictory. We have not attempted to give in detail all the facts but the foregoing gives us the setting for the discussion of the legal questions involved.
The defendant requested several instructions embodying what he contends was the law governing under the facts and issues of this case to the effect that it is the duty of persons operating motor vehicles on meeting each other upon the public highway to yield one-half of the traveled portion thereof by turning to the right; that persons operating motor vehicles upon the public highway shall have the same under control; that no person shall drive any vehicle upon the highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead; that persons operating motor vehicles upon the highway shall drive the same at a careful and prudent speed not greater nor less than is reasonable and proper having due regard to the traffic, surface and width of the highway and of any other conditions then existing; that an adequate signaling device shall, in all cases, be sounded on approaching tops of hills in the country where the operator's view is obstructed; that persons operating motor vehicles upon the highway shall exercise ordinary care to keep a reasonable and proper lookout. To each of the requested instructions was added the following: “and the defendant had a right to assume that the plaintiff would obey this law until the defendant knew or in the exercise of ordinary care he should have known otherwise.” Appellant now complains and assigns as error the failure of the court to give the requested instructions and especially in failing to embody in the court's instructions the assumption clause above quoted. After giving this matter our careful consideration, we are of the opinion that the court's instructions do not sufficiently cover the law applicable to the issues in this case.
[1] By Instruction No. 7, the court submitted three grounds of negligence charged in plaintiff's petition for the jury's consideration as follows:
“(a) That the defendant was negligent in operating his car on the left hand side of the highway at a time when he was meeting the motorcycle of the plaintiff, and in failing to turn to the right and yield one-half of the traveled portion of the highway.
(b) That the defendant drove his automobile at and prior to the time and place of the collision on the left hand side of the paved highway with the left rear door of his said automobile open.
(c) That the defendant while operating his said automobile with the left rear door open thereon failed to yield to the plaintiff one-half of the traveled portion of the highway.”
and stated in connection therewith, in substance, that plaintiff could not recover unless he had established by the greater weight or preponderance of the evidence one or more of the above stated grounds of negligence. The only rule of law given by the court in connection with the alleged grounds of negligence is contained in Instruction No. 11 as follows:
“The statutes of Iowa provide in substance that when motor vehicles meeting each other on the public highway each shall give one-half of the traveled track by turning to the right, and a failure to comply with such statute constitutes prima facie evidence of negligence.”
The specific complaint lodged against the court's submission of the plaintiff's alleged
[282 N.W. 377]
grounds of negligence to the jury being as follows:
“It is error to submit to the jury as issues separate allegations of negligence and to fail thereafter to instruct the jury with reference thereto, and thus to permit the jury to find the defendant negligent in one or more of such particulars, without guide or direction relative thereto.”
It will be noticed that the court simply stated the substance of Code, § 5020 and did not tell the jury that this law was applicable to any of the specific charges of negligence submitted or what acts or failure to act would constitute negligence under any one of the three specifications submitted. This was held to be reversible error in the case of Muirhead v. Challis, 213 Iowa 1108, 240 N.W. 912, wherein this court said [page 915]:
“Again, as hereinbefore stated, the court submitted to the jury in instruction No. 1, the first two grounds of negligence hereinbefore quoted. In no instruction did the court specifically define to the jury what acts would constitute negligence under said allegations. While it is true that the court in a subsequent instruction told the jury of the ‘law of the road’ as contained in section 5020, Code 1927, and that it is the duty of each driver of an automobile to observe these regulations, and that a failure to so do would be presumptive evidence of negligence on the part of the driver so failing, and that said presumption is not conclusive, but may be overcome or rebutted by other facts and circumstances...
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