Kuehn v. Jenkins, 49797

• Decision Date: 17 November 1959
• Docket Number: No. 49797,49797
• Citation: 251 Iowa 557,100 N.W.2d 604
• Parties: Clara KUEHN, Appellant, v. Novaleen JENKINS, Henry L. Jenkins, Jenkins Trucking and Feed Company, and Claude Junior Dishman, Appellees.
• Court: Iowa Supreme Court

Page 604

100 N.W.2d 604

251 Iowa 557

Clara KUEHN, Appellant, v. Novaleen JENKINS, Henry L. Jenkins, Jenkins Trucking and Feed Company, and Claude Junior Dishman, Appellees.

No. 49797.

Supreme Court of Iowa.

Nov. 17, 1959.

Rehearing Denied March 11, 1960.

McCarville & Bennett, Fort Dodge, for appellant.

Alan Loth, Fort Dodge, and Archerd, Birdsall & Draheim, Clarion, for appellees.

LARSON, Chief Justice.

This is a companion case to the case of Clara Kuehn v. Jenkins, 100 N.W.2d 610, submitted at the same session of this court. From a verdict and judgment for plaintiff in the administratrix case, defendants appealed. In the present action the trial court set aside the verdict and plaintiff appeals. The same record was before us in both appeals. Only a brief factual statement is necessary here.

At about 6:30 a. m. on July 26, 1959, Clara Kuehn, the plaintiff, started to drive her car north on 8th Street in Clarion, Iowa. It was about 109 feet from that place to the center line of First Avenue. First Avenue ran east and west, Eighth Street north and south. Plaintiff's home was on the southeast corner of the intersection, the northwest corner being 57 feet and 9 inches from the south curb line of First Avenue. As she reached the point where she could see up First Avenue to her right, she said she looked and saw no vehicle approaching. Her car was moving about 8 or 10 miles per hour and, when she reached the east and west sidewalk about 16 feet from the south curb line of First Avenue, her daughter cried out, 'Look out, Mom,' and she looked right, saw the truck approaching, applied her brakes, and slid to a complete stop just short of the center line of First Avenue. She testified defendants' truck, when first observed, was about 'three-quarters down the street * * *' and 'a quarter past the middle of the street * * *.' 'He was doing at least 35 to 40 miles an hour, maybe more.' As her car came to a stop, they collided and she lost consciousness. Defendant testified he did not see her until after the collision, denied driving over 25 miles per hour and on the wrong side of the street. Plaintiff's Pontiac sedan was a total wreck, and she was severely injured.

Defendants' motion to take from jury consideration plaintiff's charges of (1) failure to maintain a proper lookout, (2) excessive and illegal speed, and (3) failure to yield one half the highway, was sustained. The court said: 'Her conduct was such in connection with the operation of her vehicle * * * that the only possible theory upon which the question of defendants' liability could be submitted to a jury was upon the theory of last clear chance, * * *.' An exception was granted plaintiff.

The jury was told in the instructions that plaintiff alleged defendants were negligent 'in failing to avoid said accident when the operator of the defendants' truck saw the plaintiff's automobile and knew or in the exercise of due care should have known that the automobile in which plaintiff was riding was in a position of peril then standing in a motionless position on the south side of the center of said street and when the defendants were charged with knowledge that a collision was inevitable unless in the exercise of ordinary care the operator of said truck endeavored to stop the same or to change the course of said truck to his right-hand side of said street.'

The jury returned a verdict for plaintiff for $5,000. By way of explanation of its action in setting aside the verdict, the court said there were no facts in evidence from which the inference could arise that the defendant Dishman knew of plaintiff's presence in time to have avoided the collision, had he exercised due care, and therefore the last clear chance doctrine could not apply. As to that conclusion we must agree.

Appellant's assignment of error states: (A) 'The trial court erred in sustaining defendant-appellee's motion for judgment notwithstanding the verdict,' and (B) 'The trial court erred in not submitting certain allegations of negligence, namely, speed, look-out, and wrong side of the street driving * * *.'

I. As generally understood, the doctrine of last clear chance presupposes contributory negligence of plaintiff. Olson v. Truax, Iowa, 97 N.W.2d 900, 905. However, plaintiff contends her allegation as to last clear chance, specification (h), was in the alternative, and we think that was permissible under Rule 67, R.C.P., 58 I.C.A. Thus, assuming without conceding that she was negligent, plaintiff maintains there was substantial evidence that the defendant Dishman (1) had actual knowledge of plaintiff's situation, (2) realized or should in the exercise of reasonable care have realized he was in peril, (3) had the ability to avoid injury to plaintiff thereafter, and (4) failed to do so, and that his negligence would be the sole proximate cause of the collision, and she was entitled to recover. Olson v. Truax, supra; Strom v. Des Moines & Central Iowa Ry. Co., 248 Iowa 1052, 1070, 82 N.W.2d 781, 791, and citations; Schreiber Mills, Inc. v. Lee County, 249 Iowa 746, 750, 88 N.W.2d 811, 814.

Obviously the burden rests upon plaintiff to make a case for the application of that doctrine. Menke v. Peterschmidt, 246 Iowa 722, 727, 728, 69 N.W.2d 65, 69; Nagel v. Bretthauer, 230 Iowa 707, 712, 298 N.W. 852, 854; Annotation, 159 A.L.R. 724.

Even with the benefit of the rule as to how we shall view the testimony, we fail to find in the record any evidence to justify the submission of that issue to the jury. There is not a scintilla of evidence in the record tending to prove that the defendant Dishman ever saw the plaintiff or her automobile prior to the collision. There were no facts shown upon which such an inference could be drawn. Indeed, in ruling on the motion to set aside, the court said the defendant Dishman admitted in so many words that he did not see the plaintiff's vehicle at all until after he had stopped his truck some 211 feet down the street. There were no brake or swerve marks east of the intersection and no physical facts to indicate he had such knowledge, except perhaps the fact that plaintiff's automobile did come slowly sliding into the intersection. Any inference that may be drawn from that fact, standing alone, falls far short of plaintiff's burden to show that Dishman knew of plaintiff's presence before the crash. The rule is clear that, unless it is shown in some manner acceptable in law that defendant actually saw the plaintiff, no presumption can arise to aid plaintiff to establish as a fact that defendant should have realized his peril in time to have avoided the collision. Menke v. Peterschmidt, supra; Lynch v. Des Moines Railway Co., 215 Iowa 1119, 245 N.W. 219; Olson v. Truax, supra.

We conclude the trial court should not have submitted the last clear chance doctrine in this action, and, having done so, was correct in setting aside a verdict based thereon.

II. The rule is well established that where there is sufficient evidence to warrant submission of pleaded specifications of negligence, it is error for the court not to do so. Hackman v. Beckwith, 245 Iowa 791, 795, 64 N.W.2d 275; Smith v. Darling & Co., 244 Iowa 133, 136, 56 N.W.2d 47, 49. The trial court did submit those same issues under the same showing in the companion administratrix case, and we affirmed that action. Clara Kuehn, Admx. v. Jenkins, et al., supra. We must adhere to our application of that rule in this case, and must accept the evidence in its construction most favorable to the plaintiff, and this is particularly true when the issues are withdrawn from jury consideration. Thus we apply here also the rule which requires that disputed questions of fact, from which reasonable minds might draw varying conclusions, are for the determination of the jury. Roller v. Independent Silo Co., 242 Iowa 1277, 1282, 49 N.W.2d 838; Hackman v. Beckwith, supra; Ritter v. Andrews Concrete Products & Supply Co., Iowa 93 N.W.2d 787, 789, and citations. Being aware of this rule, we may safely assume that the learned trial court did not submit those specifications in this action because it had then determined for itself that plaintiff had failed to produce sufficient proof of her freedom from contributory negligence for jury consideration. If it was wrong as to that conclusion, these specifications, along with the question of freedom from contributory negligence, should have been submitted to the jury and a new trial must be ordered. On the other hand, if we should agree that plaintiff was contributorily negligent as a matter of law, it must be apparent that a failure to submit these issues would not be such error as would justify a reversal of the judgment. Schwartz v. Helsell, 243 Iowa 95, 101, 50 N.W.2d 573, 577. The nub of this controversy is, did it appear that plaintiff was guilty of contributory negligence as a matter of law?

III. One may assume, until in the exercise of due care he may discover otherwise, that others using the streets and highways will obey the law, that they will drive on their right side of the street, within the speed limits prescribed, will yield the right of way at street intersections, and otherwise comply with ordinances and statutes governing motor vehicle operation in the city and state. How far one may go with such an assumption as to lookout poses a very difficult question. It has caused and will continue to cause courts much trouble. Schwartz v. Helsell, supra. The problem there stated was: 'The question of how far the negligence of one party to an accident may be considered in absolving the other from contributory negligence,...