Jesse v. Wemer & Wemer Co., 49091

CourtUnited States State Supreme Court of Iowa
Citation248 Iowa 1002,82 N.W.2d 82
Docket NumberNo. 49091,49091
PartiesFreddie JESSE, Appellee, v. WEMER and WEMER COMPANY and Adam Walters, Appellants.
Decision Date03 April 1957

Gilmore, Dull & Keith, Ottumwa, and Baumert & Gerard, Sigourney, for appellants.

Moon, Barnes & Schlegel, Ottumwa, and Kepford, Balch & Kepford, Waterloo, for appellee.

LARSON, Justice.

Plaintiff's action for damages resulted from an accident on Highway 63 about three miles north of Ottumwa, Iowa, May 22, 1951, about 6 or 6:30 P.M. Southbound plaintiff had brought his empty semitrailer truck to a stop from 40 to 75 feet north of a railroad underpass after he received a signal from the operator of a northbound semitrailer nearing the underpass indicating that he was coming through. Plaintiff, traveling about 50 miles per hour, had passed defendants' vehicle, a dual-wheeled loaded stock truck, about a mile north of the underpass, and had returned to his west lane prior to the yellow nonpassing warning line on the pavement. Plaintiff testified he first pulled away from defendants' rig, but after proceeding some 500 or 600 feet started to slow down, flash the rear running lights on his truck, and apply his brakes which activated his rear stop light. Defendant Walters said he saw the flashing lights when he was still some 150 feet behind plaintiff's truck and applied his brakes, but for some reason was unable to stop in time to avoid running into the rear of plaintiff's vehicle which had then come to a complete stop.

From the record we learn that the pavement was 20 feet wide with a 6 or 8 inch berm, and although the pavement did not narrow under the pass, the pilings were very close to the edge of the pavement, and this gave the appearance of a narrow defile in the highway, as disclosed by the photo exhibits introduced.

Without reference to statutory obligations, the trial court gave instructions on due care, negligence, contributory negligence, etc. and refused defendants' proposed instructions relating, among other things, to statutory violation and legal excuse. The jury found for the plaintiff and fixed his damages at $12,366.29. Defendants' motion for judgment notwithstanding the verdict and motion for a new trial were overruled and judgment entered for the jury-determined amount. Defendants assign nineteen errors, which may be considered under four propositions, i. e. Was plaintiff guilty of contributory negligence as a matter of law? Should the trial court have submitted for jury consideration certain issues as to plaintiff's negligence and given requested instructions thereon? Did the court err in admitting certain evidence as to custom and as to competent medical testimony? Was the jury verdict excessive? Further reference to the evidence appears in the opinion and of course under the rule will be considered in the light most favorable to the plaintiff.

Defendants' motion for a directed verdict made at the close of plaintiff's case, renewed at the close of all testimony, based upon grounds that plaintiff had failed to prove his freedom from contributory negligence which contributed to his injury and damage, was properly denied. Their principal contentions are that plaintiff violated the obligations of a statute, section 321.354, without explanation or excuse, that he failed to keep a proper lookout, and that he failed to prove he had given the statutory warning required of one who stops upon the highway, all of which contributed directly to his injury and damage.

Defendants urge, with vigor, that both the statutes pertaining to stopping and parking on the highway and pertaining to adequate warning devices, were statutory pronouncements of the requirements of due care, and that the unexcused violation here of those provisions was negligence per se, citing cases such as Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552; Marts v. John, 240 Iowa 180, 35 N.W.2d 844, and others. They refer to our statement in Florke v. Peterson, 245 Iowa 1031, at page 1034, 65 N.W.2d 372, at page 373, where we said: We have consistently held that violation, without legal excuse, of a statute which prescribes the care required under given conditions constitutes negligence per se', citing cases.

Defendants alternately argue that if we consider the violations here no more than prima facie negligence, the question as to whether or not plaintiff's acts were justified and were not contributory negligence should have been submitted to the jury under proper instructions as to statutory requirements and adequate excuse for failure to comply. They cite such cases as Clark v. Umbarger, Iowa 1956, 75 N.W.2d 243; Smith v. Pust, 232 Iowa 1194, 6 N.W.2d 315; Reed v. Willison, 245 Iowa 1066, 65 N.W.2d 440; Ellis v. Robb, 242 Iowa 875, 47 N.W.2d 246; Tuhn v. Clark, 241 Iowa 441, 41 N.W.2d 13, 315 A.L.R.2d 903; and others. With the principles and enunciations set forth in these cases there can be no question here in Iowa. They are sound and correct. However, the trial court did not feel them applicable to the facts of this case, and we agree.

I. Primarily, then, the first proposition to consider is whether or not there was substantial evidence of a violation of a statutory obligation either as to stopping on the traveled portion of the highway or in failing to give a signal warning required by the statutes. The trial court clearly concluded no such evidence appeared and gave instructions relating only to common law requirements of due care. The problem thus requires consideration of the statutes involved.

Section 321.354, Code of Iowa 1954, I.C.A., in effect when this matter arose, provides in part:

'* * * no person shall stop, park, or leave standing any vehicle * * * upon the paved * * * part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway * * *.'

Primarily, this is a parking restriction statute. Its predecessor, section 5054, Code of 1924, used this language:

'No person shall, during any period of time * * * permit a motor vehicle, under his control, to stand upon the paved portion of any hard surfaced highway outside of the corporate limits * * *.' (Emphasis supplied.)

Clearly the word 'stop' used in the statute is intended as synonymous with 'park' or 'leave standing'. They must be read together. 'Park' means to halt and to leave standing, or to stop and remain standing. See Webster's New International Dictionary, 1928 edition. It is inconceivable that every stopping, regardless of the emergency or cause, even of a momentary nature, was intended to be prohibited by this statute, and in this regard it must be considered ambiguous as to legislative intent. Such a change from the common law rules requiring due care under compelling circumstances such as we observe here, would not meet with reason or expediency. We have often said statutory construction that would lead to unreasonable, unjust, impracticable and absurd consequences, cannot be adopted. Worthington v. McDonald, 246 Iowa 466, 470, 68 N.W.2d 89, and citations; 50 Am.Jur., Statutes, §§ 226, 227; Annotation, 37 A.L.R. 944. Although not strictly a case in point, see discussion in Long v. Northrup, 225 Iowa 132, 279 N.W. 104, 116 A.L.R. 1475. There are far too many times when, due to road repair, narrow bridges, or other hazardous situations, due care demands that one stop his vehicle momentarily. To require the operator of such a vehicle to take to the shoulder or to explain under such circumstances why he did not go onto the shoulder of the highway to stop, under penalty of being charged with negligence, inferred or per se, would most certainly confuse rather than clarify the obligations of a motor vehicle operator on our highways, to say nothing of juries required to pass on legal excuses therefor. This court has said many times it is the obligation of one to stop when it becomes apparent to him another will not yield the right of way and a real or apparent hazard appears. We have said it would be negligence not to do so. See Jordan v. Schantz, 220 Iowa 1251, 1256, 264 N.W. 259.

The trial court determined, under the circumstances disclosed by the evidence, the stop made by the plaintiff did not amount to parking or standing contemplated under this statute, so as to require special instruction thereon. We concur, but in doing so also warn that there may be many instances where the question of fact as to whether a 'stop' amounted to a parking prohibited by the statute, should be left for the jury under proper instructions. Nevertheless we are satisfied that where one stops momentarily upon the paved portion of the highway to yield the traveled portion of the pavement at a narrow bridge, underpass, or other defile, or in kindred circumstances, such a momentary stop itself is not a violation of the provisions of due care set forth in section 321.354 of the Code, I.C.A., and that the court was correct in refusing instructions relating thereto in this case. Section 321.316, Code of 1954, I.C.A., in contemplation of required and necessary stops on the highway, sets out a requirement of notice to following vehicle operators. This stop seemed reasonably necessary. Plaintiff testified: 'The underpass * * * looked narrow to me * * *. I believed that my truck and the one approaching me from the south could not safely pass through this underpass at the same time. * * * He (the operator of the approaching truck from the south) flashed his lights. * * * I * * * flashed my lights that I was unloaded and he could have it. * * * Immediately I started flickering my trailer lights and put my foot on the brake to come to a stop. I did not put my left arm out.' Thereafter plaintiff said he brought his truck to a casual stop 'like you normally would at a stop sign.' It was a momentary stop to let the northbound vehicle come through the underpass, for as that truck came alongside, plaintiff said he was preparing to move forward, but...

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