Jorgensen v. Horton, 55381

Decision Date28 March 1973
Docket NumberNo. 55381,55381
Citation206 N.W.2d 100
PartiesVerrine JORGENSEN, Administrator of the Estate of James W. Jorgensen, Deceased, Appellant, v. Wayne C. HORTON, Appellee.
CourtIowa Supreme Court

Harry H. Smith, Sioux City, for appellant.

Roy W. Meadows, Des Moines, for appellee.

Considered en banc.

McCORMICK, Justice.

Plaintiff appeals from judgment entered on a jury verdict for defendant in this wrongful death action. She alleges trial court erred in instructing the jury on the issues of defendant's negligence and her decedent's contributory negligence. We find trial court instructed correctly on negligence but incorrectly on contributory negligence, and reverse and remand.

Decedent James W. Jorgensen was employed as a laborer by a contractor laying asphalt in a golf course parking lot north of Sioux City. The rectangular lot measured 150 feet north and south and 250 feet east and west. A dirt road paralleled its west side about 20 feet from the lot. There were two driveways from the road to the parking lot. On the morning of June 18, 1968, the work was nearing completion. A 22 foot strip along the south edge of the lot remained to be paved. The asphalt was laid by machine but spots had to be filled in by hand. Jorgensen and a fellow employee, James Hanson, were using shovels to fill in the surface just east of the south driveway. They shoveled from a pile of loose asphalt at the north edge of the driveway. The paving machine was about 200 feet east of them. It ran out of asphalt.

Defendant Wayne C. Horton was a trucker hired by Jorgensen's employer to haul asphalt to the site. He was using a tandem dump truck with a large box containing 12 tons of asphalt. It was equipped with 'west coast' mirrors, extending about one foot on each side of the truck for rear vision, but the box blocked vision to the immediate rear.

Horton left his truck on the dirt road and walked to the paving machine to get instructions. He was told to back his truck across the lot to the machine. As he returned to the truck he saw Jorgensen and Hanson shoveling asphalt near the south driveway entrance.

He proceeded to align his truck with the driveway. When he had the rear end lined up to start backing in he looked in his mirrors. He was unable to see behind the truck and saw no one in the mirrors, although he knew Jorgensen and Hanson were working in the area. He honked the horn of the truck three times and started backing. There was evidence from which the jury could find it was a windy day and that the paving machine and a roller were making considerable noise. The jury could also find Hanson and Jorgensen did not expect the truck to back over freshly laid asphalt because it was still soft and that the truck backed at an angle passing over the pile of loose asphalt at the north edge of the driveway. Jorgensen was shoveling with his back to the truck. Hanson heard the horn and saw the truck backing up. He shouted a warning to Jorgensen but did not know if it was heard over the wind. He got out of the way but Jorgensen did not. The truck backed over Jorgensen and killed him. Horton did not learn he had run over Jorgensen until he arrived at the paving machine.

I. The negligence instruction. Plaintiff first assigned as error trial court's refusal

to instruct the jury defendant's failure to post a signalman behind his truck was negligence per se. This specification of negligence was predicated on a standard in a construction industry safety code. Kenneth Olson, director of safety and inspection for the state bureau of labor, testified the safety code was prepared and promulgated by Associated General Contractors of America, Inc. (AGC), and is widely accepted in government and industry. The AGC Manual for Accident Prevention in Construction, published in 1958, states: 'Trucks should be backed under the direction of a signalman, if operator cannot view area to the rear clearly.'

Evidence of the standard was received after foundation was laid in the testimony of Olson. Trial court instructed the jury on this evidence in instruction 12 as follows:

'Evidence has been adduced in this case relative to a safety code in the construction industry and certain rules and regulations included therein. Proof of compliance or noncompliance with such safety code or specific rules thereunder is not conclusive upon the jury on the question of defendant's due care. It is your duty to determine the question of due care from all the facts in evidence adduced including any testimony with regard to safety codes and specific rules.

'If, therefore, you find that it was the duty of the defendant Wayne C. Horton under this and all the other instructions to give warning of his intention to back his truck other than by signaling with his horn either in person by the use of a flagman or traffic director, then any such failure would constitute a lack of due care on his part and would be negligence. * * *'

Thus trial court told the jury the safety code standard was evidence to be considered on the issue of defendant's negligence in failing to warn Jorgensen but did not instruct that violation of the standard would be negligence. Plaintiff adequately preserved her complaint the instruction should have made failure to meet the standard negligence per se rather than evidence of negligence.

We have heretofore limited the doctrine of negligence per se to violations of statute or ordinance which establish the standard of care required under the circumstances. See, E.g., Kisling v. Thierman, 214 Iowa 911, 915, 243 N.W. 552, 554 (1932):

'Statutes and ordinances such as these under discussion are a legislative prescription of a suitable precaution, or a fixing by law of the standard of care which is required under the circumstances, and it must follow that a failure to observe the standard of care thus fixed by law is negligence.'

Unless a defendant failing to observe such standard shows a legal excuse for his failure, his negligence is established as a matter of law. Whether a statute or ordinance prescribes the required standard of care is decided in the light of its purpose and intent. Rosenau v. City of Estherville, 199 N.W.2d 125, 128 (Iowa 1972).

The Restatement of Torts, § 288B(1) at 37 (Second Ed.) offers this succinct statement of the rule:

'The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself.'

See also Prosser on Torts, § 36 at 200--202 (Fourth Ed. 1971); 2 Harper and James, The Law of Torts, § 17.6 (1956); 57 Am.Jur.2d Negligence § 239 at 622--623; 65 C.J.S. Negligence § 1(14) at 461--462.

The rule originated in the theory that if a court permitted a jury to treat a breach of statute or ordinance as only 'evidence of negligence' leaving the question of negligence as a fact to the jury, the jury would thereby be informed 'that it may properly stamp with approval, as reasonable conduct, the action of one who has assumed to place his own foresight above that of the legislature in respect of the very danger which it was legislating to prevent.' Thayer, Public Wrong and Private Action, 27 Harv.L.Rev. 317, 322 (1913). We cannot apply the same reasoning to private safety codes which have not been given the force of law. The usual safety code represents a consensus statement by those who prepared it. See Philo, Use of Safety Standards, Codes and Practices in Tort Litigation, 41 Notre Dame Lawyer 1, 3. It may or may not promulgate standards equivalent to due care.

We believe such codes upon proper foundation are admissible but not conclusive on the issue of negligence. See, e.g., Cronk v. Iowa Power and Light Co., 258 Iowa 603, 612, 138 N.W.2d 843, 848 (1965). They are admissible as an exception to the hearsay rule on the basis of trustworthiness and necessity. Nordstrom v. White Metal Rolling & Stamping Corp., 75 Wash.2d 629, 453 P.2d 619 (1969); cf. McCormick on Evidence § 321 at 743--745 (Second Ed. 1972). As such they are an alternative to or are intended to buttress expert testimony. Frequently expert testimony will be used to impeach them. Evidence of experts is not ordinarily conclusive on the issue of due care whether found in a book or in oral testimony.

We are unwilling to say private safety codes like the one involved in this case necessarily define the standard of conduct of a reasonable man. Violation of standards in such codes is evidence on the issue of negligence but not negligence per se.

Trial court did not err in refusing to instruct the jury violation of the safety code in this case was negligence per se.

II. The contributory negligence instruction. Plaintiff also asserts trial court erred in instructing the jury on defendant's charge Jorgensen was negligent in failing to heed Horton's warning by horn of the backing of the truck. The court told the jury in instruction 14:

'Mr. Horton for a further defense to the plaintiff's claim charges that Mr. Jorgensen was negligent in that he did not heed Mr. Horton's warning of honking the horn as the truck was moved back to the paver.

'You are instructed that it was the duty of Mr. Jorgensen to use his sense of hearing, as well as all his senses, to become aware of the lawful use of the driveway to the paver by others.

'If you find under the testimony in the case that Mr. Horton honked the horn on the truck before backing into the driveway and that Mr. Jorgensen did not heed such warning; and

'If you find that he heard such warning or, under the circumstances of this case, that he should have heard it, then Mr. Jorgensen would be negligent.

'If you further find that such failure on the part of Mr. Jorgensen was a proximate cause of his death, the plaintiff cannot recover and your verdict must be for the defendant.'

Plaintiff excepted to this instruction as inconsistent with instruction 12 'in that it would lead the jury to believe that the honking...

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