Jeck v. McDougall Const. Co.

• Decision Date: 07 February 1933
• Docket Number: No. 41727.,41727.
• Citation: 246 N.W. 595,216 Iowa 516
• Parties: JECK v. MCDOUGALL CONST. CO.
• Court: Iowa Supreme Court

216 Iowa 516

246 N.W. 595

JECK

v.MCDOUGALL CONST. CO.

No. 41727.

Supreme Court of Iowa.

Feb. 7, 1933.

Appeal from District Court, Woodbury County; Miles W. Newby, Judge.

An action to recover for the death of plaintiff's decedent growing out of a collision between an automobile and an asphalt mixer belonging to the defendant. From a judgment of $1,200 rendered on the verdict of the jury, the defendant appeals.

Affirmed.

A. R. Strong, of Sioux City, for appellant.

Swan, Martin & Martin, of Atlantic, and David Loepp, of Sioux City, for appellee.

ALBERT, J.

On the 5th day of September, 1930, between 7 and 8 p. m., Lester Woolsey was driving westward on the Lincoln Highway between Nevada and Ames in a model A Ford, with the lights on. At a point about a mile west of Nevada, his automobile collided with an asphalt mixer of the defendant, and he died as a result of such collision. The mixer is described as a machine for mixing and laying asphalt pavement. It was about 11 feet wide over all; the width on the outside of the two rear wheels being eight feet and three inches. There is what is known as a “cat walk” around the sides of the machine which is about ten inches in width and between three and one-half and four feet up from the ground. The mixer was standing with all wheels on the pavement, and extended over the black or center line of the pavement from one and one-half to three feet. It traveled under its own power at the rate of about two and three-quarters miles per hour. It had been standing about thirty minutes at the time this accident occurred, and was stopped on the pavement for the purpose of putting on a spotlight. Defendant's testimony shows that it had a lantern hanging on the front and a red lantern on the rear of the machine, and three sparklers attached to the cat walk on the rear of the machine; one in the center, and one on each corner of the back.

Plaintiff's testimony all tended to show that at the time of the collision there were no lights on any part of the machine. It weighed from fifteen to sixteen tons. The deceased approached its rear from the east, and apparently, on discovering it, turned to the right-hand, or north side, in attempting to pass it, and struck the rear of the cat walk on the north side of the machine, wrecking the automobile and injuring Woolsey, from which injury he shortly died.

The defendant appealed and urged only one ground for reversal, in that it says the deceased Woolsey, as a matter of law, was guilty of contributory negligence, and therefore its motion for a directed verdict on that ground should have been sustained. It relies upon two propositions as showing contributory negligence, as follows:

[1] 1. That the deceased was negligent in attempting to pass the mixer on the north side, whereas section 5022, Code 1931, provides that a vehicle approaching from the rear shall pass to the left.

In addition to what has been heretofore said, the testimony shows that another automobile was approaching the mixer from the west, with its lights on, and was in the immediate vicinity of the mixer, on the south thereof, at the time of the collision. We think the situation thus created, so far as this question is concerned, was such that the jury might have found that the deceased was confronted with an emergency such as would excuse his turning to the right instead of to the left.

The second ground on which the defendant bases its contention is that the deceased did not have his car under control so as to stop the same “within the assured clear distance ahead.”

The undisputed evidence shows that the deceased was driving his automobile at a speed of 35...