Johnston v. Calvin, 46036.

CourtUnited States State Supreme Court of Iowa
Citation5 N.W.2d 840,232 Iowa 531
Docket Number46036.
Decision Date20 October 1942

Healey & Reynolds, of Creston, for appellant.

Frank F. Wilson, of Mt. Ayr, and Thos. E. Mullin, of Creston, for appellee.

GARFIELD, Justice.

The collision occurred about two a.m. on January 1, 1941, on U. S. Highway 34, five miles east of Creston. Plaintiff, who was driving his wife and a Mr. and Mrs. Denhart were returning from a dance in Creston to their home in Mt. Ayr. Plaintiff's Chevrolet was traveling east. Defendant, with a girl friend and another young couple, was driving his Ford car west toward Creston. They were returning from "Locust Inn." The left front of the two cars collided. From the force of the collision, plaintiff's car left the paved surface, which was 18 feet wide, turned around and came to rest facing northwest, backed against the fence on the south side of the highway. Defendant's Ford came to rest facing westerly, its front wheels on or somewhat south of the center line of the roadway.

Plaintiff suffered severe and permanent personal injuries, aside from damage to his car, for all of which he seeks recovery. Defendant filed a counterclaim asking recovery for his own personal injuries and damage to his car. Each party claims the collision occurred on his right side of the center of the highway because of the other's failure to yield one-half the traveled way by turning to the right when the two cars met, as required by section 5024.02, Code, 1939. The jury returned a verdict for plaintiff for $3500. From the judgment entered thereon defendant has appealed.

I. Appellant contends that appellee was guilty of contributory negligence as a matter of law because, it is said, by not stopping his car he violated that part of section 5023.01, Code 1939, which provides that no person shall drive any vehicle "at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead, such driver having the right to assume, however, that all persons using said highway will observe the law."

Appellee testified that he first saw appellant's car coming around a curve when it was distant 300 to 400 feet; that he discovered it was south of the center line when the two cars were about 150 to 200 feet apart; that he didn't stop because he thought surely appellant would pull over to the north of the center line; that he, appellee, slowed down and pulled off on the south shoulder so that his two right wheels were a foot south of the paved roadway when the collision occurred. Testimony for appellee was that he was traveling 35 to 40 miles per hour before he discovered appellant approaching on the wrong side; that appellee then took his foot off the accelerator and slowed down to 25 or 30 miles per hour before the collision; that appellant's car was traveling 40 to 45 miles per hour when it collided with appellee.

Appellant and the only occupant of his car who testified on the subject said they first saw appellee's car when it was about 350 feet ahead of them; that it straddled the center line until the time of collision; that they were traveling 25 to 30 miles per hour and appellee 45 to 50. The argument for appellant is that since appellee, according to his version saw appellant's car approaching on the south of the center of the highway, it became appellee's duty, as a matter of law, to stop his car. The contention cannot be sustained.

This court has held that the assured clear distance requirement applies under certain circumstances to vehicles approaching from opposite directions. See Albert v. Maher Bros. Trans. Co. 215 Iowa 197, 208, 243 N.W. 561. The assured clear distance rule has usually been applied, however, where the vehicles are moving in the same direction or where a motorist collides with a stationary object. McWilliams v. Beck, 220 Iowa 906, 913, 262 N.W. 781. The statute, section 5023.01, has more limited application to a collision between oncoming vehicles, where each driver has a right to assume, until he knows or in the exercise of ordinary care should have known otherwise, that the other will yield to him his talf of the roadway. Gregory v. Suhr, 224 Iowa 954, 959, 277 N.W. 721; Jordan v. Schantz, 220 Iowa 1251, 1256, 264 N.W. 259; Young v. Jacobsen Brothers, 219 Iowa 483, 486, 258 N.W. 104. See also Schuster v. Gillispie, 217 Iowa 386, 388, 251 N.W. 735; Remer v. Takin Bros. Freight Lines, 227 Iowa 903, 909, 289 N.W. 477; Anderson v. Kist, 229 Iowa 462, 294 N.W. 726; Angell v. Hutchcroft, Iowa, 3 N.W.2d 147, 149.

The cited decisions are controlling here. Cases cited by appellant in which a motorist collided with a stationary object while driving at a speed greater than permitted him to stop within the range of his vision are clearly distinguishable. Appellee had a right to assume that appellant would yield to him the south half of the roadway. There was nothing to prevent appellant from so doing. Appellant was required by statute to have his car to his right of the center line when, and only when, meeting another traveler going in the opposite direction. Stopping appellee's car would not have changed the course taken by appellant and there is no assurance that the collision would thereby have been avoided. See cases cited above, especially Young v. Jacobsen Bros., and Jordan v. Schantz.

II. It is next claimed that appellee's counsel purposely injected into the trial the matter of liability insurance. One Benedict was a witness for appellant. His testimony was not entirely consistent. When questioned by appellant's counsel, he testified he was wholly disinterested and was present in response to a subpoena. On recross examination appellee's counsel asked the witness over appellant's objection that it was immaterial if he had ever talked to anyone about the case. The witness answered, "Well, there was one of the insurance men out to see me one night." Appellant's counsel immediately moved to strike the answer. The court sustained the motion and instructed the jury not to consider the answer. Thereupon, appellant moved for a mistrial, which the court denied. Appellee's counsel insisted the answer came as a surprise and the trial court was of the opinion there was no improper motive on their part.

This assignment of error cannot be sustained. The witness was appellant's. The reference to insurance was indefinite. It does not appear that the question was not asked in good faith. Under a similar record this court held there was no error in Albert v. Maher Bros. Trans. Co., 215 Iowa 197, 214, 243 N.W. 561. See, also, Remer v. Takin Bros. Freight Lines, 230 Iowa 290, 295, 297 N.W. 297, and citations; Pierce v. Dencker, 229 Iowa 479, 484, 294 N.W. 781.

III. About 5 p.m. on January 2, 39 hours after the collision, the deputy sheriff, when visiting the scene thereof in company with appellant's attorneys, found an empty quart whiskey bottle in a pasture about 30 steps from where appellee's car had come to rest. Upon appellee's objection, the trial court refused to receive the bottle in evidence and would not permit testimony regarding its discovery. The court held the offered evidence was too remote to be of probative value. Especially since no claim of intoxication was raised by the pleadings. The ruling is assigned as error.

Appellant as a witness had testified that he opened the door to appellee's car soon after the collision and saw on the floor of the back seat a quart bottle that "looked like a whiskey bottle" and that he smelled the odor of whiskey. The occupants of appellee's car denied there was any liquor in the car and said none of them had been drinking intoxicants that night. Appellant and his witness Benedict assisted in carrying appellee to the car which took him to the hospital and neither of them testified that he smelled liquor on appellee or that there were other signs of intoxication. No witness gave any testimony tending to show that appellee had been drinking nor that anyone was seen attempting to throw a bottle out of the car.

The trial court had discretion in deciding whether the offered testimony was admissible. 31 C.J.S., Evidence, p. 871, § 161. Appellant concedes this but says the ruling shows an abuse thereof. We are unable to agree with appellant. It is well known that there are frequently many liquor bottles along widely traveled highways such as U. S. 34, especially within a short distance from a roadside tavern on January 2. The offered evidence, in our opinion, would not give rise to more than a mere suspicion. This is insufficient. 31 C.J.S., Evidence, p. 872 § 161. As having some bearing, see Richardson v. Sioux City, 172 Iowa 260, 262, 263, 154 N.W. 430, Ann.Cas.1918A, 620.

IV. In appellee's petition it was alleged that the collision was caused by the negligence of appellant in three respects First, failure to yield one-half of the traveled way by turning to the right when the cars met. Second, driving at a speed greater than would permit appellant to stop within the assured clear distance ahead and failure to stop within such distance. Third, failure to keep a proper lookout and driving at excessive speed. Appellant's counterclaim pleaded the same charges of negligence against appellee in practically identical language. At the close of the evidence, appellant moved to withdraw the second and third charges of negligence from the petition because without support in the evidence. The motion was sustained. Upon appellee's motion, the court then withdrew the second and third specifications of negligence from the counterclaim. Appellant asserts error in this last ruling. The principal complaint is that the court should have submitted to the jury the second charge of negligence in the counterclaim alleging that appellee violated the...

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