Keller v. Gartin

• Citation: 261 N.W. 776,220 Iowa 78
• Decision Date: 21 June 1935
• Docket Number: 42831.
• Parties: KELLER v. GARTIN.
• Court: Iowa Supreme Court

261 N.W. 776

220 Iowa 78

KELLER v. GARTIN.

No. 42831.

Supreme Court of Iowa.

June 21, 1935

Appeal from District Court, Lucas County; George W. Dashiell, Judge.

Action at law for damages growing out of an automobile accident and alleged to have been caused by defendant's negligence. From a verdict and judgment in favor of defendant, plaintiff appeals.

Reversed and remanded.

Bracewell & Poston, of Corydon, and H. V. Levis, of Chariton for appellant.

G. C Stuart and A. V. Hass, both of Chariton, for appellee.

DONEGAN, Justice.

On July 18, 1933, about 8 o'clock p. m., a Chevrolet coach owned by plaintiff, E. E. Keller, and operated by his son, Donald Keller, was proceeding southward on primary road No. 65 in Wayne county, Iowa. Accompanying said Donald Keller at tat time were a young man named Paul Wells and two young ladies. Shortly after this automobile came over the brow of a hill, a collision occurred between it and another automobile owned and driven by Keith Gartin, which was going northward on said road. As a result of this collision the Keller car was so badly damaged that it was in a condition beyond repair, Donald Keller received certain injuries, and Paul Wells sustained damages to his clothing and a slight injury which necessitated the attendance of a doctor. The claim of Paul Wells was assigned to E. E. Keller, the owner of the car, who brought suit therefor as well as for the injuries sustained by Donald Keller and the damage done to the car. Upon the trial of the case, the jury returned a verdict in favor of the defendant, and the plaintiff appeals. The principal grounds of error alleged are based upon instructions given and refused by the trial court.

I. It is first claimed that the court erred in the statement of the cause of action, as set forth in plaintiff's petition. In instruction No. 4 the court told the jury that the only ground of negligence alleged by plaintiff was that defendant negligently " drove his car in a northerly direction and allowed it to travel to the west of the center of the highway and encroached upon the line of travel of said Donald Keller," and in instruction No. 5 the court referred to the negligence of the defendant " as set out in the preceding instruction." The complaint made is that these instructions limited the jury to a consideration of the negligence of the defendant in failing to yield one-half of the traveled portion of the highway, whereas the plaintiff's petition alleged that the plaintiff's car was occupying the west side of the west line of travel close to the edge of said highway, and the negligence claimed by plaintiff was not merely that the defendant failed to yield one-half of the traveled portion of the highway, but that he traveled several feet to the left of the center line of said traveled portion of the highway before colliding with plaintiff's car.

The allegations of defendant's negligence contained in plaintiff's petition are found in paragraph 5, where it is stated that the defendant " negligently and carelessly drove his car in a northerly direction and allowed his car to travel to the west of the center of the highway, and in that way encroached upon the line of travel which said Donald Keller was traversing" ; and in paragraph 6, where it is stated " that as a consequence of driving to the west of the center of highway 65, the automobile driven by the defendant collided with, and ran into the car of the plaintiff." Paragraph four contains the statement that plaintiff's car was " traversing the west side of highway number 65 and to the west of the center of the line of travel," and paragraph 7 states that " the car of the plaintiff was occupying a position at the west side of the west line of travel on primary 65, close to the west edge of the shaled part of said highway" ; but neither of these statements amounts to an allegation of negligence on the part of the defendant. The only allegations of acts of the defendant which it is claimed constituted negligence are those contained in paragraphs 5 and 6, which we have set out above, and we, therefore, find no error in the court's statement of the grounds of negligence alleged in plaintiff's petition.

II. In its instruction No. 11 the court told the jury:

" It is also the claim of the plaintiff that immediately preceding the collision, defendant's car swerved to the west, and thereby brought about the collision. This is not alleged as a specific ground of negligence on the part of the defendant, but it is material for you to consider as bearing upon the question of contributory negligence on the part of Donald Keller.

In this connection, you are instructed that if a person is confronted with a sudden emergency, not of his own making, he is not held to the same accuracy of judgment as is required under ordinary circumstances, and if an accident occurs, he would be guilty of contributory negligence only for a failure to exercise that care which a person of ordinary care and prudence would exercise under the same or similar circumstances."

Complaint is made of this instruction because it is claimed that, in telling the jury that the swerving of defendant's car was not alleged as a specific ground of negligence but that it was material for them to consider as bearing on the question of contributory negligence on the part of Donald Keller, and in then proceeding to explain this statement and apply it to the question of contributory negligence on the part of Donald Keller only, without in any way explaining it or applying it to the question of defendant's negligence, the jury would understand that the swerving of defendant's car should not be considered by them in determining negligence on the part of the defendant, but that they should consider it only in connection with the care which should have been used by Donald Keller in avoiding the collision. It is true, of course, that the court in a preceding instruction had told the jury that a violation of the law requiring defendant to give the driver of plaintiff's car one-half of the traveled portion of the highway by turning to the right would be prima facie evidence of negligence on the part of the defendant. It is also true that the sudden swerving of the defendant's car to the west was not alleged in the petition as a separate and specific ground of negligence. The language used by the court, however, might readily lead to confusion on the part of the jury as to whether this swerving could be considered for any other purpose except in determining the question of contributory negligence on the part of Donald Keller. The facts were such that the jury might have found that as the cars approached each other the defendant's car was slightly to the west of the center line of the highway, but that this was not the proximate cause of the accident, because they might also have found that plaintiff's car was near the extreme west edge of the traveled part of the highway, and that there was sufficient space between the path of the defendant's car and the path of the plaintiff's car so that the...