Johnson v. Overland Transp. Co.
| Decision Date | 21 November 1939 |
| Docket Number | 44904. |
| Citation | 288 N.W. 601,227 Iowa 487 |
| Parties | JOHNSON v. OVERLAND TRANSP. CO. et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Webster County; O. J. Henderson, Judge.
Action at law to recover damages for personal injuries received when the car in which plaintiff was riding collided with the trailer of a tractor-trailer unit of the defendants which was stalled on a country highway. From a judgment on a verdict by a jury, and from an order overruling defendants' motion for new trial and exceptions to instructions, the defendants have appealed.
Affirmed.
C. A Smedal, of Ames, Maher & Mullen, of Fort Dodge, and Putnam Putnam, Fillmore & Putnam, of Des Moines, for appellants.
D. M Kelleher and Horace J. Melton, both of Fort Dodge, for appellee.
The collision in which the injuries of plaintiff were received occurred on the south slope of a hill, on primary highway number 71, an arterial paved road crossing the state, at a place, near the south line of Cass County, about a mile and a half north of the town of Grant, at about 10 o'clock P M., Christmas Eve, 1937. The vehicle of the defendants was a combination tractor and trailer. The tractor part in which was the motor, cab, fuel tanks, etc., was about ten feet long. The trailer was a four compartment tank, about twenty two feet long, carrying 3,000 gallons of kerosene, or petroleum distillate. The combination, from bumper to bumper, was about 33 feet in length, and weighed about 14,500 pounds, when empty, and on this occasion carried a load of approximately 20,000 pounds. The top of the tank was about seven feet from the ground and was about eight feet wide. Its color was a dirty gray, very like that of the pavement. The outfit had left Augusta, Kansas, that morning, with two drivers, Scott and Herbst. The former had driven to Maryville, Missouri, arriving about 6 o'clock in the evening, and Herbst drove from then on to the time of the collision. The road had become icy and traveling was difficult. They passed through Grant about 9:30 P. M., and reached the place of collision a short time thereafter. The hill in question was about a half mile long, with a rather gentle slope most of the way, and a sharper incline near the top. The hill was icy, and the driver was having difficulty in making the car climb the hill. After shifting to the lowest gear, the wheels lost traction, and the truck stalled when about two thirds of the way up the hill. The tractor and the tank trailer immediately " jack-knifed" into an angle somewhat larger than a right angle, with the tractor facing north on the east lane of the road, and the trailer extending diagonally southwest completely across the west lane and on to the west shoulder.
The plaintiff and her husband and their four and a half year old son left their home near Harcourt, about six o'clock that afternoon, in the Ford car of the husband, for a Christmas visit with her parents, residing near Grant. They came on to highway number 7 at Panora and continued on that road to Hamlin, and turned south on highway 71. The road was hilly and icy all of the way, and the husband, who was a careful, cautious driver, drove at an average speed of about twenty five miles an hour. Both of them were quite familiar with the road north of Grant. The husband was driving and in complete charge and control of the car, and the plaintiff sat in the front seat by his side, with the boy asleep in the back seat. There were a succession of hills north of the one on which the defendant's vehicle was stopped, and as they approached this hill from the north, the plaintiff and her husband observed the rays from headlights reflected from the sleet covered tree tops to the south of them. They assumed the light was from an automobile approaching them. They proceeded up the north slope of the hill and over the crest, at a speed, according to Mr. and Mrs. Johnson, of not to exceed twenty miles an hour. Both of them were experienced drivers. As they went over the top of the hill, their attention was directed to the east side of the road, by the headlights of a car apparently parked or stopped near the east shoulder of the road, a few hundred feet down the hill. They assumed that it was a car occupying only the east lane of paving. Near the top of the hill on the west side of the road was the Fisher farm house, in front of which was a telephone pole. Farther down on the west side, and about west of the defendant's truck was the Woolenhouse home, in front of which was another telephone pole. Between the two houses, and between the other two poles, was another telephone pole. Neither the plaintiff nor her husband saw any lights except the two headlights. Both testified that the car was going down the hill at not to exceed twenty miles an hour. When they were at a distance of fifty, and not to exceed one hundred, feet from the truck, her husband cried " Look," and as she looked, she screamed, as she saw " this great object that was just the color of the pavement ahead of us." As her husband called her attention to the trailer, he at once threw his weight on the foot brake, and the speed of the car slackened some, as they testified, but continued straight ahead and struck and went under the tank at about its center. Plaintiff was thrown into the windshield and shattered it with the blow of her face and head. Plaintiff admitted that she was not a very good judge of distance, but estimated that their car was about the distance between two telephone poles (which she imagined was about one hundred feet) away from the trailer when she first saw it. There was about a four or five foot shoulder on the west side, with a rather abrupt ditch beyond. One of the rear wheels of the trailer was in the concrete gutter or flange of the pavement, and the other was on the shoulder. The tank extended beyond the wheels about two feet on the shoulder. Passage on the west end of the trailer was completely blocked. The shoulder on the east side was wider and the slope was more gentle. Herbst, the driver, testifying for the plaintiff, said that the Johnson car " couldn't get out of the way."
Plaintiff in her petition, as amended, alleged that the defendants were negligent in the following particulars:
The defendants answered admitting the collision, denied generally, and averred that any injuries received by plaintiff were caused or contributed to by her own negligence, and not by any negligence of the defendants.
In their motion for a directed verdict, the defendants, among other grounds, urged that: plaintiff had wholly failed to make a case; the collision occurred because of the negligence of the plaintiff's driver in failing to have his car under control, or to drive at a careful rate of speed, or to keep a proper lookout, or to so operate his car as to stop it within the assured clear distance ahead, all of which negligence was the sole and proximate cause of the collision; plaintiff had failed to show that defendants were negligent, or if they were negligent, that it was the proximate cause of the collision; the failure of the defendants to observe the statutory requirements of setting out flares, fusees, or lanterns, did not constitute negligence because of legal excuse; and plaintiff had failed to show herself free from contributory negligence.
The motion was overruled, and after verdict and judgment for plaintiff, defendants' motion for new trial and exceptions to instructions were also overruled. The overruling of the motions, and the refusal of the court, to sustain the various grounds alleged therein, are assigned as errors for reversal.
With respect to plaintiff's allegation that defendants were negligent in not setting out the flares, lighted fusees, or lanterns, as required by Section 472 of Chapter 134 of the laws of the 47th General Assembly, the defendants concede that none of these warnings were set out or displayed, but urge that the failure was not actionable negligence, because the circumstances legally excused the failure, and further, because such failure had no proximate causal connection with the injury. They also urged that they substantially complied with the statutory requirements by waving a flash light toward the Johnson car.
To determine the soundness of defendant's contention, we must go to the facts which have support in the record. Herbst was driving when the truck stalled. Scott, the reserve driver, was then asleep in the compartment, back of and above the seat. Woolenhouse, as a...
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