Jones v. Krambeck
| Decision Date | 13 February 1940 |
| Docket Number | 45028. |
| Citation | 290 N.W. 56,228 Iowa 138 |
| Parties | JONES v. KRAMBECK. |
| Court | Iowa Supreme Court |
Appeal from District Court, Scott County; W. R. Maines, Judge.
Action at law for recovery of damages under the guest statute. Code 1935, § 5026-b1. Verdict was returned in favor of defendant. From the overruling of plaintiff's motion for new trial he appealed.
Affirmed.
Lane & Waterman, of Davenport, for appellant.
A. W Hamann, of Davenport, and Putnam, Putnam, Fillmore & Putnam of Des Moines, for appellee.
While he was riding as a guest of one Charles Krambeck in an automobile that the latter was operating on a public highway the appellant Jones sustained personal injuries when the car struck the abutment of a concrete culvert. Krambeck did not long survive, the accident. Against his estate the appellant filed a claim for damages predicating same upon Krambeck's reckless operation of the car. Upon the trial a verdict was returned by the jury in favor of appellee-executrix of Krambeck's estate. Plaintiff filed exceptions to the instructions and a motion for new trial. Same were overruled. From that ruling he has appealed.
One alleged error during the trial, set out as a ground of the motion, was the court's refusal to give an instruction requested by appellant that was in these words: " You are instructed that under the laws of this state the driver of an automobile, when overtaken by a faster moving automobile proceeding in the same direction, upon a signal given by the driver of the overtaking automobile, must cause his car to be driven to the right of the center of the traveled way, if he can do so with safety, and remain to the right of the center of such traveled way without any increase of speed until the overtaking automobile shall have safely passed."
The requested instruction followed in the main the wording of Section 5021, Code 1935, which had been repealed by Chapter 134 of the Acts of the 47th G.A. prior to September 15, 1938, the date on which appellant was injured. In Chapter 134 the subject matter to which Section 5021 pertained is found in Section 330, the material parts of which are the following:
Appellee takes the position that appellant was not entitled to have the instruction given because he relied upon a repealed statute. But the question really is whether the instruction stated the law as enacted in Section 330, and we think it in large measure did so. However, Section 330 does not in terms require the overtaken driver to cause his car to be driven to the right of the center of the traveled way as does the requested instruction. Section 330 is a rule laid down by the legislature for the purpose of governing the overtaking and passing of vehicles proceeding in the same direction. The repealed statute demanded that the overtaken vehicle be driven to the right of the center of the traveled way. It is significant that that requirement is not found in the later enactment. Nor is it reasonably implied. Rather, if the overtaken driver has given way to the right and thereby has favored the overtaking driver to the extent of affording ample room and opportunity to pass and proceed ahead, the seeming purpose of the rule and intent of the legislature has been attained. The so doing by the overtaken driver may or may not require that his vehicle be driven to the right of the center of the traveled way. In the instant case the highway had a smooth graveled surface which was 24 feet in width. The evidence showed that Krambeck had given way to the right in ample degree to enable an overtaking car, which was being driven by one Grossbier, to pass. The requested instruction would have imposed on Krambeck the duty of additionally driving to the right of the center of the highway. We do not so interpret the law as stated in Section 330. There is also another respect in which the law as found in Section 330 is not reflected in the requested instruction. Under Section 330 the two things required of the overtaken driver are not fully performed until his car has been " completely passed" by the overtaking vehicle. In the requested instruction the words " safely passed" are used. It seems possible that a jury could infer from this use of the word " safely" that the...
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