Kisling v. Thierman, No. 41166.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: ALBERT
• Citation: 214 Iowa 911,243 N.W. 552
• Decision Date: 24 June 1932
• Docket Number: No. 41166.
• Parties: KISLING v. THIERMAN ET AL.

214 Iowa 911
243 N.W. 552

KISLING
v.
THIERMAN ET AL.

No. 41166.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Hamilton County; Sherwood A. Clock, Judge.

Action for personal injuries resulting from an automobile collision. From judgment entered on the verdict of the jury in favor of the plaintiff, the defendants appeal.

Affirmed.

[243 N.W. 552]

Putnam, Putnam & Forrest, of Des Moines, for appellants.

Page & Norelius, of Denison, and Burnstedt & Hemingway, of Webster City, for appellee.

ALBERT, J.

About 7:30 on the night of October 24, 1929, the plaintiff was riding in an automobile, driven by her brother and owned by her father, on primary road No. 4 running north and south through the town of Deloit in Crawford county. The night was dark and rather foggy, and they were traveling in a southerly direction, and as they passed over the top of a hill, they had a collision with a truck owned

[243 N.W. 553]

by the defendant, traveling ahead of them in the same direction. As they reached the top of the hill, another car came from the south, with its lights on, and after this car had passed, they discovered the truck ahead of them, and in seeking to avoid a collision with said truck, the right front part of the car in which plaintiff was riding struck the rear of the truck, resulting in injuries to the plaintiff on which she bases this action.

The second count is based on the assignment to the plaintiff by the father, the owner of the car, of his claim for damages for injuries to the car.

I. The court gave the following instruction to the jury: “No. VI. You are instructed that it is the law of this state that every motor vehicle when in use upon the highway shall display on the rear a lamp so constructed and placed as to show a red light from the rear, and throw a white light directed upon the rear registration numerals thereon visible for at least fifty feet in the direction from which the vehicle is proceeding, and a failure so to do would in itself be negligence, and if damage proximately resulted therefrom and the person damaged was not herself contributorily negligent, then the driver of the motor vehicle thus operating would be liable.”

It will be noted that this instruction tells the jury that a failure to display a lamp showing a red light on the rear of the car would “in itself be negligence.” This instruction is assailed on the ground that it is not a correct statement of the law governing such cases because a failure to display such lamp is only prima facie negligence.

Section 5020, Code 1931, reads as follows: “Persons on horseback, or in vehicles, including motor vehicles, meeting each other on the public highway, shall give one-half of the traveled way thereof by turning to the right.”

In the early history of this state, with the slow-moving vehicles we had in those days, the law was not very clear as is shown by section 908, Code 1860, which provided that “persons meeting each other on any of the public highways of this state, shall give one-half of the same by turning to the right.”

This section was re-enacted as section 1000, Code 1873, and it so read until the adoption of the Code of 1897. When the Code of 1927 was adopted, this section was amended so as to include motor vehicles, and was so carried forward to the Code of 1931. Since the advent of faster-moving vehicles, special statutes have been enacted from time to time in relation thereto, but this section of the statute has been undisturbed in so far as roads outside of cities and towns are concerned. The general theory of this court in relation to this statute has been that on such highways, the driver of a vehicle has a right to use any part of the road he sees fit, except when meeting another vehicle, when he is required to give one-half of the traveled way by turning to the right. In pursuance of this thought, this court has consistently held that the fact that a vehicle is traveling on the wrong side of the road is only prima facie evidence of negligence. The first expression of the court was in Riepe v. Elting, 89 Iowa, 82, 56 N. W. 285, 26 L. R. A. 769, 48 Am. St. Rep. 356, and we have followed this pronouncement consistently in the following cases: Cook v. Fogarty, 103 Iowa, 500, 72 N. W. 677, 39 L. R. A. 488;Carpenter v. Campbell Automobile Company, 159 Iowa, 52, 140 N. W. 225;Herdman v. Zwart, 167 Iowa, 500, 149 N. W. 631;Baker v. Zimmerman, 179 Iowa, 272, 161 N. W. 479;Swanson Auto. Co. v. Stone, 187 Iowa, 309, 174 N. W. 247;Cooley v. Killingsworth, 209 Iowa, 646, 228 N. W. 880;Sergeant v. Challis (Iowa) 238 N. W. 442.

In Carlson v. Meusberger, 200 Iowa, 65, 204 N. W. 432, and Hansen v. Kemmish, 201 Iowa, 1008, 208 N. W. 277, 45 A. L. R. 498, suggestions that certain distinctions might be made have received no further attention from this court in subsequent cases, nor were the opinions in those cases turned on the suggested distinction.

Although this doctrine is inconsistent with the pronouncement we are making in this case, the majority of the court is of the opinion that this line of decisions, under the aforesaid section of the statute, should not be disturbed in view of the fact that it has been the recognized doctrine of this state since the enactment of the aforesaid section in the Code of 1860. It is therefore the law that where an accident occurs outside of cities and towns, the fact that the vehicle is on the wrong side of the road is only prima facie evidence of negligence.

This alleged error necessitates a review of our cases relative to a failure to comply with statutes or ordinances, which cases, we must confess, are apparently in confusion.

As to the...