Jones v. Blair

• Citation: 387 N.W.2d 349
• Decision Date: 21 May 1986
• Docket Number: No. 85-601,85-601
• Parties: Leo J. JONES and Linda Jones, Appellants, v. Robert P. BLAIR; Mary J. Blair; and JKM Corporation, f/k/a Moorhead Machinery & Boiler Company, Appellees.
• Court: United States State Supreme Court of Iowa

Page 349

387 N.W.2d 349

Leo J. JONES and Linda Jones, Appellants, v. Robert P. BLAIR; Mary J. Blair; and JKM Corporation, f/k/a Moorhead Machinery & Boiler Company, Appellees.

No. 85-601.

Supreme Court of Iowa.

May 21, 1986.

C.A. Frerichs of Fulton, Frerichs, Martin & Andres, P.C., Waterloo, for appellants.

David L. Riley of Lindeman & Yagla, Waterloo, for appellees Blair.

Bruce L. Braley and Samuel T. Beatty of Mosier, Thomas, Beatty, Dutton, Braun & Staack, Waterloo, for appellee JKM.

Considered by UHLENHOPP, P.J., and McGIVERIN, LARSON, SCHULTZ and CARTER, JJ.

McGIVERIN, Justice.

Plaintiffs Leo and Linda Jones appeal from a judgment entered on a jury verdict in favor of defendants Robert and Mary Blair and JKM Corporation, formerly known as Moorhead Machinery & Boiler Company (Moorhead), in a negligence action arising from a traffic accident. Defendants Blair have cross-appealed. Upon a consideration of the controlling issues presented for our review, we reverse on the appeal and remand for a new trial.

Plaintiff Leo Jones brought this action to recover damages for personal injuries he suffered in a collision with a vehicle owned by defendants Robert and Mary Blair, and operated by Robert allegedly while in the course of his employment for defendant Moorhead. Leo's wife, Linda Jones, was a passenger in the car and joined in this action seeking damages for loss of consortium. Defendants Robert and Mary Blair filed a counterclaim, Iowa Rule of Civil Procedure 29, seeking damages for the repair and loss of use of their vehicle as a result of the collision.

At the time of the accident, on December 31, 1981, plaintiffs were westbound on highway 18, a two-lane road in Fayette County. They were proceeding at a speed of approximately forty to forty-five miles per hour. It was snowing that day, and the highway was snow-covered and slippery.

Defendant Robert Blair also was traveling west on highway 18. He was returning to his home in Ankeny after completing work on a job for defendant Moorhead in Lansing, Iowa. Moorhead, a Minnesota corporation, had contracted with a company located in Lansing to furnish certain services repairing boiler generating tubes. Defendant Blair was hired through a union hiring hall to work under a collective bargaining agreement which provided reimbursement for mileage expenses incurred by employees, who were required to travel more than thirty miles from their home to a job site, in addition to hourly pay by Moorhead.

Blair began work for Moorhead at Lansing in early December 1981, and the particular job for which he was hired was completed on December 30, 1981. On that same day, he was laid off and received his final pay and allowances from defendant Moorhead, including transportation pay to his home. Because of the slippery road conditions, Blair decided to leave for home the following day, December 31.

At trial, defendant Blair testified that prior to the collision with the Jones vehicle, he was following two cars on the highway at a speed of approximately thirty-five to forty miles per hour. The Jones car was directly in front of him. Blair testified that when the cars reached an intersection with a county road, the two cars preceding him pulled over towards the right side of the road as though both were going to make a right turn north off the highway. Blair continued to proceed westerly in the right-hand lane. The lead car, the one in front of the Jones vehicle, turned right onto the county road, and then the Jones vehicle made a left turn in front of Blair. Defendant Blair pumped his brakes, but he was unable to stop and slid into plaintiffs' vehicle. Blair testified that he did not see a turn signal from the Jones' car until just prior to the impact. Leo Jones testified that he put his left turn signal on approximately one thousand feet from the intersection and that he did not swerve right before turning left.

Plaintiffs brought this action alleging various specifications of negligence against Robert Blair including: 1) passing in a prohibited zone, Iowa Code section 321.304 (1981); 2) failure to have his motor vehicle under control and to reduce his speed at an intersection, Iowa Code section 321.288(3); 3) driving at a greater speed than would permit stopping within an assured clear distance, Iowa Code section 321.285; 4) following too closely, Iowa Code section 321.307; 5) failing to operate at a reasonable and proper speed, Iowa Code section 321.285; 6) failing to maintain a proper lookout; and 7) failure to have his motor vehicle under control.

Plaintiffs contended that at the time of the accident defendant Blair was acting within the scope of his employment, and, thus, Moorhead was brought into the action under the doctrine of respondeat superior.

After plaintiffs completed their evidence, defendant Moorhead moved to dismiss or for a directed verdict. Iowa R.Civ.P. 216. The motion was renewed at the close of all the evidence. The district court denied both motions.

In his answer defendant Blair pleaded legal excuse, claiming that if he violated a statute or common law duty that he had a legal excuse for doing so and was, therefore, not negligent. Plaintiffs objected to any jury instruction on legal excuse, particularly the one proposed by the court. However, such an instruction was given, and the jury returned special verdicts, Iowa Rule of Civil Procedure 205, finding that neither of the drivers, Robert Blair nor Leo Jones, was negligent. The court entered judgment in favor of defendants Blair and Moorhead.

Plaintiffs then filed a motion for new trial, Iowa Rule of Civil Procedure 244, raising various grounds. The main contentions by plaintiffs involved the issue of legal excuse. After hearing on the matter, the district court denied plaintiffs' motion for new trial.

Plaintiffs appealed raising numerous errors, and defendants Blair cross-appealed.

The controlling issues raised by the parties are: 1) whether there was substantial evidence to support submission to the jury of Robert Blair's affirmative defense of legal excuse; 2) whether, if the jury instruction on legal excuse was warranted, the instruction given by the district court was defective; 3) whether there was improper opinion testimony permitted about the effects of snow and ice in causing the accident; and 4) whether Moorhead was entitled to a directed verdict on the ground that Robert Blair was not an employee acting within the scope of his employment for Moorhead at the time of the accident.

I. Substantial evidence of legal excuse. A violation of statutory rules of the road constitutes negligence per se under our holding in Kisling v. Thierman, 214 Iowa 911, 915, 243 N.W. 552, 554 (1932), absent a legal excuse. Legal excuse is a doctrine which allows a person to avoid the consequences of a particular act or type of conduct which would otherwise be considered negligent by showing a justification for it. Freese v. Lemmon, 267 N.W.2d 680, 684-85 (Iowa 1978). In Kisling, this court listed four categories of legal excuse, one of which is when a person "is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute." 214 Iowa at 916, 243 N.W. at 554.

Basically, the doctrine of sudden emergency reflects the realization that a person who is confronted with an emergency situation is "left no time for thought, or is reasonably so disturbed or excited, that he cannot weigh alternative courses of action, and must make a speedy decision, based largely upon impulse or guess." W. Prosser, The Law of Torts § 33 at 169 (4th ed. 1971). Thus, the person is not held to the same standard of care as one who has had time to reflect before acting.

Ordinarily, whether one has established a legal excuse is a question for the jury. Bangs v. Keifer, 174 N.W.2d 372, 376 (Iowa 1970). Upon review, in determining whether the issue of legal excuse was properly submitted, we construe the evidence in a light most favorable to the one asserting the defense. Bannon v. Pfiffner, 333 N.W.2d 464, 469 (Iowa 1983). We also note that the person who is attempting to assert the defense has the burden of proving that he or she was legally excused by virtue of the emergency. Id. Therefore, we will consider the evidence in the light most favorable to defendant Blair in order to determine if he has met his burden on this issue. Keeping these other general principles in mind, we consider the various contentions raised by the parties.

Plaintiffs contend that there was not substantial evidence in this record to support the submission of defendant Blair's affirmative defense of the legal excuse of sudden emergency to the jury.

Plaintiffs rely heavily on our holding in Bannon v. Pfiffner, where this court rejected a defense of sudden emergency based on the foreseeability of icy conditions on a roadway. There we stated that when "the icy condition is general ... the driver must be taken as being aware of it. If such a driver proceeds in normal fashion notwithstanding the ice and eventually slides on a patch of it, he cannot set up the icy condition as an 'emergency'." 333 N.W.2d at 469-70. Plaintiffs argue that defendant Blair was guilty of negligence as a matter of law in not being able to stop his vehicle on the icy highway because he knew of the slippery road conditions before he started out. Therefore, they contend that Blair is foreclosed from relying on the legal excuse of sudden emergency.

Defendant Blair, on the other hand, alleges that when he was faced with the unexpected maneuver of plaintiffs' car in turning to the right and then making a left turn off the highway, coupled with the icy conditions, it was impossible for him to comply with the law, and, thus, his conduct should be excused under the sudden emergency doctrine. Further, Blair states that it was for the jury to resolve the conflicting testimony by the parties regarding Jones' left turn and to determine if he in fact...