Johnson v. Kinnan

Decision Date03 April 1923
Docket NumberNo. 34262.,34262.
Citation192 N.W. 863,195 Iowa 720
CourtIowa Supreme Court


Appeal from District Court, Marshall County; James W. Willett, Judge.

Action to recover damages for personal injury, caused by a collision between a bicycle ridden by the plaintiff and an automobile driven by the defendant. Verdict for the plaintiff, and defendant appeals. Reversed and remanded.C. H. E. Boardman, of Marshalltown, for appellant.

F. E. Northup, of Marshalltown, for appellee.


East Main street, in the city of Marshalltown, runs east and west. It is intersected at right angles by First avenue. The intersection of said streets is in the business district of said city. East Main street is approximately 48 feet in width from curb to curb. Located on said street are two sets of street car tracks. The center of each of the car tracks are approximately 18 feet from the curb. The cars on the south track move to the east, and those on the north track to the west.

On or about the 7th of December, 1916, the appellee was riding a bicycle eastward on East Main street, between the rails of the south street car track, close to the south rail. At that time the appellant was driving his automobile eastward on East Main street and some distance behind the appellee and about 2 1/2 feet south of the south rail. In this situation the parties approached the intersection of East Main street and First avenue.

The evidence tends to show that, as the parties approached the intersection, the appellant sounded the horn on his automobile when he was about 150 feet west of the corner and again just before reaching the corner. His testimony is that he had pushed out the clutch on the car and was driving about 6 or 8 miles an hour. The appellee's contention is that he was riding his bicycle slowly at the time and that it was his intention to turn north on First avenue; that the movement of vehicles to the westward on the north side of the street interfered somewhat with his turning to the north on First avenue, and he was looking for an opportunity to go northward down that street. It is his contention that he did not hear any sound of the horn of appellant's car and did not look back and did not know that the appellant was approaching.

At a point near the west curb of First avenue, the appellant's car passed the appellee on the south, or right-hand side. It is the claim of the appellee that his bicycle was struck by the fender of the appellant's car; while it is the contention of the appellant that the appellee's bicycle “wobbled” as the appellee was moving slowly and attempting to turn northward on to First avenue, and that the bicycle and the appellee fell to the south and struck the appellant's car.

There were but two witnesses, outside of the parties to the accident, who saw the collision. One of these testified in behalf of the appellant and the other in behalf of the appellee. The appellee described the location where the accident occurred as being just before he reached the intersection. The appellee testified that he was not paying any attention to what was coming behind him, and that he made no motion or signal to indicate that he intended to turn to the right or the left. Appellee's claim was predicated upon seven alleged grounds of negligence.

[1] I. It is contended that the trial court erred in submitting to the jury the ground of negligence that appellant did not have his car under control. By proper request, appellant asked that this ground of negligence be withdrawn from the consideration of the jury. The court did withdraw from the jury the alleged ground of negligence in failing to apply the brake and also the alleged negligence in operating at an improper rate of speed. Appellant argues that, with these two grounds of negligence withdrawn, the ground of failure to have the car under control should have been withdrawn also. Counsel says, “What can there be to ‘control’ but speed and the means of checking that speed?”

Manifestly, the ability to turn the automobile and to expeditiously change its course to avoid collision or injury may have something to do with the “control” of an automobile. The present ability to increase or decrease the speed at which a car is moving and likewise the ability to divert or change its course may be properly involved in the question of control. If there were evidence that the appellant could have averted the collision in this case by diverting the course of the automobile, this question might have been properly one for the jury. But there was no such evidence. We think the court erred in submitting this ground of negligence to the jury. It should have been withdrawn.

[2] II. Appellant contends that the court erred in submitting to the jury the alleged ground of negligence in failing to warn appellee of the approach of the automobile. Appellant and a witness who was upon the street near the intersection both testify positively that appellant gave a timely warning of his approach by sounding the horn on the auto. Appellee and his witness, who was also near the intersection, testify that they did not hear the horn sounded.

It was for the jury to determine, from the situation of the respective parties, the attention that was being given to the matter, and all the other facts and circumstances as shown by the testimony, whether or not the appellee established this claim of negligence. It was not error to submit this question to the jury upon the record.

[3] III. It is contended that the court erred in refusing to withdraw from the jury the ground of alleged negligence in attempting to pass appellee on the right-hand side. It is contended, first, that appellee was not on the right side of the street near the curb, as he should have been, and that, in order for appellant to pass him, it was necessary for appellant to pass to the right of appellee, because of the traffic moving to the westward on the north side of the street, on appellee's left. The statute, Code Supplement 1913, § 1571m18(2) provides:

“The operator of a motor vehicle, when overtaking and passing another vehicle, shall pass to the left where the surface of the ground will permit and shall not drive to the right until clear of such vehicle.”

Code Supplement 1913, § 1569, provides in part:

“Whenever a person in any vehicle shall approach from the rear upon the public highway and desire to pass, it shall be the duty of the driver or operator of such vehicle ahead to give one half of the beaten path thereof, upon proper signal or request, by turning to the right. The vehicle approaching from the rear shall turn to the left and shall not return to such road or path within less than thirty feet of the team or vehicle which has been passed.”

It is contended by appellant that he was not attempting to pass appellee at all, and therefore could not have been guilty of negligence in driving to the right of appellee. Under the evidence it would have been a question for the jury as to whether or not at the time of the collision the appellant was attempting to pass the appellee to the right; but another question, however, confronts us at this point, and that is whether or not, even if it be true that appellant was attempting to pass appellee, was it negligence for him to attempt to pass to the right of appellee, and was this the proximate cause of the injury? The statutes above quoted establish the rule of the road respecting the overtaking and passing of another vehicle and require that such passage shall be to the left “where the surface of the ground will permit.”The statute also provides that, upon signal, the driver of the vehicle in advance shall surrender one-half of the beaten path of the highway by turning to the right. These statutes establish a rule of general application that one overtaking another vehicle and attempting to pass the same, must do so on the left. Like all rules, there may arise emergencies or exigencies where it may not be improper for one to overtake and pass a vehicle on the right. It is possible to imagine a situation where the refusal of the driver of the advance vehicle, after due signals to change his course, and the lack of space and the continued congestion of an opposing current of traffic, and all the attendant conditions to the left of the advance vehicle, might render it necessitous for the driver of the rear vehicle to pass to the right of the advance one. The rule of the statute requires that such overtaking and passage shall be to the left of the advance vehicle. Prima facie it is negligent to make the passage to the right of the advance vehicle. It may, however, be a question of fact under all the circumstances as to whether or not it was negligence in a given case for the driver of the rear vehicle to attempt to pass the advance vehicle on the right, and whether he attempted so to do in a careful and proper manner. Herdman v. Zwart, 167 Iowa, 500, 149 N. W. 631;Carpenter v. Campbell Auto Co., 159 Iowa, 52, 140 N. W. 225;Needy v. Littlejohn, 137 Iowa, 704, 115 N. W. 483;Hubbard v. Bartholomew, 163 Iowa, 58, 144 N. W. 13, 49 L. R. A. (N. S.) 443.

[4] In this case, however, it appears that the attempt of the appellant to pass to the right of the appellee, if he did attempt so to do, was in no wise the proximate cause of the injury to appellee. Under appellee's own evidence it was his purpose to turn to the left and he was endeavoring so to do at the time. According to appellee, he was trying to turn away from the appellant, not toward him, if appellant was on his right. Under such condition the fact that appellant was to the right of appellee instead of to his left was in no manner the proximate cause of the accident. A finding of the jury to that effect could not have been sustained. For this reason the court should have withdrawn this question of negligence from the consideration of the jury.

[5] IV. Complaint is made that the court erred in submitting to the jury...

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