Kadlec v. Al. Johnson Const. Co.

• Citation: 217 Iowa 299,252 N.W. 103
• Decision Date: 12 December 1933
• Docket Number: No. 42152.,42152.
• Parties: KADLEC v. AL. JOHNSON CONST. CO.
• Court: United States State Supreme Court of Iowa

217 Iowa 299

252 N.W. 103

KADLEC

v.AL. JOHNSON CONST. CO.

No. 42152.

Supreme Court of Iowa.

Dec. 12, 1933.

Appeal from District Court, Clayton County; Carl W. Reed, Judge.

Action for damages resulting from a collision of plaintiff's automobile with defendant's unlighted truck, standing on the easterly half of a paved street running north and south in Monona, Iowa. The court sustained a motion for a directed verdict on behalf of defendant on the ground of plaintiff's contributory negligence. Thereupon plaintiff filed a motion for a new trial, which was overruled. Plaintiff appeals.

Reversed.

D. D. Murphy & Son, of Elkader, for appellant.

Price & Sharp, of Elkader, and H. B. White and Huebner & Huebner, all of Des Moines, for appellees.

KINTZINGER, Justice.

On the night of July 3, 1931, plaintiff, in company with two other young men, was driving his automobile north on Main street in Monona, Iowa. He collided with a truck parked on the easterly side of the street without headlights, tail-light, illuminated number plates, warning device, or reflectors. Main street was 24 feet wide between curbs. The truck was used by the construction company on a local paving job, and was owned by the defendant Baker. It was a large tenton double rear wheel truck, had become stained with cement, and was of a gray cement color about the same color as the pavement. This truck was 8 feet wide, and was so parked that the rear right wheel was 20 inches from the curb. The truck was so located that the rear left side of the truck came within 2 feet 4 inches of the center line of the pavement, leaving only about 2 feet between the rear west end of the truck and the center of the pavement.

There were a number of large maple trees on both sides of the highway, with the foliage and branches overhanging into the street. There were street lights partly within the line of the trees, and these lights, combined with the foliage, cast shadows upon the street. As plaintiff was approaching the location of the truck, a car with lights was approaching from the north.

Plaintiff, who had been traveling in the center of the street, was preparing to meet the on-coming car by turning to his right. After so doing, the unlighted truck suddenly loomed up about 6 or 8 feet ahead of him. He did not see this truck until that time. Plaintiff testified that he had been keeping a lookout ahead, but was unable to see the unlighted truck until he came within 6 or 8 feet of it; that his clear vision of the unlighted truck was interfered with and obstructed by shadows from the overhanging branches of the trees made by the street lights, and by the attention given to the lighted car approaching a short distance ahead. When the unlighted truck loomed up in front of him, he turned to the left, but the rear end of his car collided with the truck. He then continued across the street to the west curb, and stopped his car about 20 feet from the truck. After crossing the street, the lighted on-coming car turned to the left to avoid striking plaintiff's car, and immediately turned to the right to avoid striking the truck. It was upon these facts that the lower court directed a verdict in favor of the defendant on the grounds of plaintiff's contributory negligence.

The motion for a directed verdict was based solely on the ground of plaintiff's contributory negligence. As it was not claimed that defendant's negligence had not been established, it will be assumed for the purpose of this case that the defendant was negligent in the particulars alleged, and it will be unnecessary to give this branch of the case any consideration.

I. The substance of plaintiff's motion for a new trial was based upon the ground that under the peculiar facts and circumstances of this case the question of plaintiff's contributory negligence was for the jury. Defendant suggests that, because its motion for a directed verdict was based upon several grounds, defendant's motion for a new trial should not be sustained if any one of the grounds of the motion for a directed verdict was good. The motion for a directed verdict is as follows:

“Comes now the defendants at the close of the plaintiff's evidence and moves the court to direct a verdict for the defendants in this case for that it appears under the most favorable light which may be given to the evidence of the plaintiff that the immediate and proximate cause of the plaintiff's damage, if any, was his own negligence and contributory negligence.

1. Plaintiff did not have his car under proper control which would enable him to stop his car within the clear vision of his lights.

2. That it appears that the plaintiff was traveling at a dangerous and reckless rate of

speed and in violation of the ordinances of the town of Monona and the laws of the State of Iowa.

3. That it affirmatively appears from the plaintiff's own testimony that he could stop his car within a distance of ten feet if he was traveling at the rate of twenty-five miles per hour, and that he failed to stop his car within that distance and failed to avoid the accident in question.

4. For the further reason that under the evidence in this case that it would be the duty of the court to set aside any verdict which might be returned by the jury in favor of the plaintiff as clearly against the weight of the evidence.”

The substance of all four grounds is in effect that the plaintiff was guilty of contributory negligence because he did not bring his car to a stop “within the assured clear distance ahead.” This statute includes and contemplates the question of proper control, visibility of his lights, rate of speed, and all other matters embraced in the motion for a directed verdict. The only question for consideration, therefore, is whether or not the plaintiff was guilty of contributory negligence in not complying with the “assured clear distance ahead” statute, under the facts and circumstances present in this case.

II. Section 5029 provides as follows:

“ Speed Standard. Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.”

[1] This statute has been considered in a number of our cases, and in all of them the general rule was announced that the “assured clear distance ahead” means that a person must drive his car in such a manner as to be able to stop it within the vision or radius of his lights on approaching a discernible object on the highway. Lindquist v. Thierman (Iowa) 248 N. W. 504;Wosoba v. Kenyon, 215 Iowa, 226, 243 N. W. 569;Peckinpaugh v. Engelke, 215 Iowa, 1248, 247 N. W. 822;Harvey v. Knowles Storage & Moving Co., 215 Iowa, 35, 244 N. W. 660.

In Harvey v. Knowles Storage & Moving Co., 215 Iowa, 35, 244 N. W. 660, loc. cit. 663, in reference to the assured clear distance ahead statute we said: “A violation of, or noncompliance with, this statute, without proof of legal excuse for noncompliance, constitutes negligence.” (Italics ours.)

A thorough consideration of this question is contained in an opinion written by Kindig, C. J., in Lindquist v. Thierman (Iowa) 248 N. W. 504. In that case, and also in the Wosoba v. Kenyon Case, 215 Iowa, 226, 243 N. W. 569, 572, the plaintiff was blinded by the lights of the on-coming car. Under such circumstances, it was held that, when the driver of a car is blinded by the lights of an on-coming car, it is his duty to stop, and a failure so to do amounts to a violation of the “assured clear distance ahead” statute, and constitutes contributory negligence, as a matter of law.

In Lindquist v. Thierman, 248 N. W. 504, loc. cit. 508 we said: ““Consequently, it is evident that the words ‘within the assured clear distance ahead,’ as used in the statute, signify that the operator of the automobile, when driving at night as well as in the day, shall at all times be able to stop his car within the distance that discernible objects may be seen ahead of it.” (Italics ours.)

In other cases, however, it is held that, if the peculiar facts and circumstances of any particular case are such as to constitute a sufficient excuse for failing to stop, then the question of plaintiff's contributory negligence may be one for the jury. Jeck v. McDougall Construction Co. (Iowa) 246 N. W. 595;Kimmel v. Mitchell (Iowa) 249 N. W. 151;Carlson v. Decker & Sons (Iowa) 247 N. W. 296.

In the case of Ellis v. Bruce, 252 N. W. 101, decided at the present sitting, we said: “The conclusion reached in the above cited cases is in harmony with what is said in Lindquist v. Thierman, supra. As to what may amount to an emergency, such as was referred to in some of the above cases, sufficient to entitle the driver of a motor vehicle whose failure to stop it within the assured clear distance ahead has resulted in injury or damages to another, must depend in large measure upon the facts peculiar to each case. * * * As there is a total absence in the evidence of any emergency or diverting fact or circumstance in this case, we have no occasion to consider or discuss this subject.”

[2] It is the well-settled rule of this state that a person rightfully driving on the highway has the right to assume that other persons using the same will obey the law. Jelsma v. English, 210 Iowa, 1065, 231 N. W. 304;Hartman v. Red Ball Co., 211 Iowa, 64, 233 N. W. 23;Jeck v. McDougall Construction Co. (Iowa) 246 N. W. 595;Smith v. Spirek, 196 Iowa, 1328, 195 N. W. 736;Hanson v. Manning, 213 Iowa, 625, 239 N. W. 793;Kisling v. Thierman, 214 Iowa, 911, 243 N. W. 552.

In the case of Jeck v. McDougall Construction Co., 246 N. W. 595, 596, we said: “This principle of law must be taken into consideration in the determination of the...