Lauman v. Dearmin

• Decision Date: 08 March 1955
• Docket Number: No. 48367,48367
• Citation: 69 N.W.2d 49,246 Iowa 697
• Parties: James LAUMAN, Otto Anderson, and Glenn Cullen, Plaintiffs-Appellants, v. Vernon DEARMIN, Defendant-Appellee, Nelle CULLEN, Intervenor-Appellant.
• Court: Iowa Supreme Court

Page 49

69 N.W.2d 49

246 Iowa 697

James LAUMAN, Otto Anderson, and Glenn Cullen, Plaintiffs-Appellants, v. Vernon DEARMIN, Defendant-Appellee, Nelle CULLEN, Intervenor-Appellant.

No. 48367.

Supreme Court of Iowa.

March 8, 1955.

John Randall, Richard F. Nazette, Cedar Rapids, for appellants.

Elliott, Shuttleworth & Ingersoll, Cedar Rapids, Will J. Hayek, Iowa City, for appellee.

HAYS, Justice.

Plaintiffs' petition alleges that a Hudson four door sedan, owned by Glenn Cullen and being driven by James Lauman with his consent, due to the icy condition of the highway, skidded out of control and slid down an incline on the highway to where it was struck by defendant's car coming from the opposite direction. That plaintiffs were free from contributory negligence. The defendant was negligent in failing to maintain a proper lookout; in failing to have his car under control; and in failing to turn to the right to avoid striking plaintiffs' car. By amendment to conform to proof, the last clear chance was pleaded. Lauman and Anderson, a passenger, ask damages for personal injuries. Glenn Cullen, as owner and also an occupant, seeks damages to the car and for personal injuries. Intervenor, Nelle Cullen, in whose name the car was registered, joins with Glenn Cullen and asks that her interests be protected.

Defendant's answer admits the collision and that Lauman was driving plaintiffs' car. All other allegations are denied. By counterclaim against Lauman, Glenn Cullen, and Nelle Cullen, defendant alleges a car driven by Lauman and owned by Glenn Cullen or Nelle Cullen collided with his car. That Lauman was driving the car with the knowledge and consent of Glenn Cullen, who was the owner, and of Nelle Cullen, in whose name it was registered. Nine specified acts of negligence on plaintiffs' part are set forth with a request for damage to the car and for personal injuries. There was a verdict and judgment for defendant on the counterclaim and all plaintiffs and intervenor appeal.

The record shows the following facts: The collision occurred about 11:30 p.m., January 10, 1947, on Highway 218. At the place material here, this highway runs generally north and south and has a paved slab eighteen feet wide with a curb on each side. The night was clear and the pavement icy and slippery. At a place called Indian Look-out Hill, a few miles south of Iowa City, the highway has a curve and then a long incline to the north. Plaintiffs driving 30 to 35 miles per hour in a northerly direction, rounded the curve and started down the incline. The car skidded out of control. The right front wheel was against the east curb, the rear wheels sliding to the west so that the rear end of the car angled across the pavement into the left lane of travel some four or five feet. In this position it slid down the incline some 400 feet to the place of collision with defendant's car which was approaching from the north. Lauman stated that he observed the lights of defendant's car as he rounded the curve. That he observed it as they slid down the incline and that it appeared to be entirely in its lane of travel and coming at about the same speed.

Defendant Dearmin stated that he was driving about 25 miles per hour and the pavement was slippery. He observed the lights of plaintiffs' car some 850 feet ahead and it appeared to be in his lane of travel. He dimmed his lights and then saw the lights of the oncoming car angle to the northeast. He stated: 'When my car and the other car were about 400 feet apart, I saw the lights on the other side of the pavement angling in a northeasterly direction until 40 to 60 feet from the front of my dim lights, when I first saw the back of their car on my side of the road.' He also stated: 'If I had put on my bright lights which would shine 400 feet ahead of me, I could have seen the other car and how it was coming down the road.' When he saw the car 50 to 60 feet ahead of his car he slowed almost to a stop and had the left wheels in the right hand gutter when the collision occurred.

Don Oberman, riding in the rear seat of defendant's car, stated he saw plaintiffs' car skid and the headlights shine off to the northeast. He told Dearmin: 'There's a car up there in trouble.' Dearmin had just dimmed his lights, reduced his speed somewhat and had his right wheels on the curb. He saw the lights shining off to the northeast for about half way down the incline and then failed to observe them further.

The collision occurred entirely on defendant's side of the highway, with his left front wheel and fender striking the left side of plaintiffs' car just to the rear of its left rear door. After the collision, defendant's car extended over onto the right (west) shoulder and a foot or two east of the west guard rail.

The trial court submitted to the jury only the last clear chance, as to plaintiffs' cause of action, and the defendant's counterclaim.

I. Plaintiffs (including intervenor) assign error in failing to submit their specifications of negligence and in the giving of Instruction No. 6.

Instruction No. 6 was in part as follows: 'All specific acts of negligence on the part of the Defendant as claimed by the Plaintiffs are withdrawn from your consideration, and the only question you are to determine as far as the liability of the Defendant is concerned is whether the Defendant had 'the last clear chance' to avoid the accident * * *.' This was followed by Instruction No. 7 which stated in part: 'The doctrine of 'last clear chance' may be explained as follows: where both parties are negligent; the one that has the last clear opportunity to avoid the accident, notwithstanding the negligence of the other, is responsible for it * * *.'

It is plaintiffs' contention that the question of look-out and control, as to defendant's acts, and also the question of plaintiffs' contributory negligence should have been submitted to the jury. That, by giving Instruction No. 6, followed by No. 7, the court virtually told the jury the defendant was not negligent and that the plaintiff was.

One operating a motor vehicle upon the highway must use ordinary care for the protection of himself and others thereon, which includes the maintaining of a proper look-out. Clayton v. McIlrath, 241 Iowa 1162, 44 N.W.2d 741, 27 A.L.R.2d 307; Hutchins v. La Barre, 242 Iowa 515, 47 N.W.2d 269. This carries a responsibility for not only what he actually sees but also for what he should have seen by the use of ordinary care and diligence. Davidson v. Vast, 233 Iowa 534, 10 N.W.2d 12; Tuthill v. Alden, 239 Iowa 181, 30 N.W.2d 726.

The last clear chance doctrine, as recognized and accepted in this state, is much more limited, and eliminates the duty of lookout. Only after a defendant has actually seen the injured party to be in a position of peril from which he cannot escape by his own acts, is the defendant to be held to the exercise of due care to avoid injury to him. Jarvis v. Stone, 216 Iowa 27, 247 N.W. 393; Rutherford v. Gilchrist, 218 Iowa 1169, 255 N.W. 516; Nagel v. Bretthauer, 230 Iowa 707, 298 N.W. 852. While we have held that under certain situations a defendant's actual knowledge of a plaintiff's perilous situation may be established by circumstantial evidence, see Groves v. Webster City, 222 Iowa 849, 270 N.W. 329; Reynolds v. Aller, 226 Iowa 642, 284 N.W. 825; such a view of the doctrine was not urged or applied here and we question its applicability in this case.

The record shows defendant saw plaintiffs' car when it was some 850 feet ahead. It also shows that by the use of the 'dim lights', defendant engulfed the space between his car and plaintiffs' in darkness and did not and could not, except by an affirmative act on his part, see the dangerous peril in which plaintiffs were until the plaintiffs' car came within the range of the defendant's dimmed lights, a distance of 40 to 50 feet. Under the rule of 'maintaining a proper look-out', defendant's duty continued during the time the 2 cars traveled that 850 feet; under the 'last clear chance', defendant's duty to act with due care existed only during the time the two cars traveled 40 to 50 feet. We think, under this record, plaintiffs presented a jury question as to defendant's failure to maintain a proper lookout. See Remer v. Takin Bros. Freight Lines, 227 Iowa 903, 289 N.W. 477; Keller v. Gartin, 220 Iowa 78, 261 N.W. 776; Reed v. Willison, Iowa, 65 N.W.2d 440; Bonnett v. Oertwig, 234 Iowa 864, 14 N.W.2d 739, 742.

The burden was on plaintiff to plead and prove freedom from contributory negligence, and it is not to be measured by the degree of care a defendant owes him. Pappas v. Evans, 242 Iowa 804, 48 N.W.2d 298. There is no dispute in the record as to the plaintiffs' car being in defendant's lane of travel and that plaintiffs failed to yield half of the traveled portion of the highway. It was clearly a violation of Section 321.298, Code of 1946, I.C.A. This, however, constitutes only prima facie evidence of negligence and ordinarily creates a jury question as to negligence or contributory negligence. Brinegar v. Green, 8 Cir., 117 F.2d 316; Langner v. Caviness, 238 Iowa 774, 28 N.W.2d 421, 172 A.L.R. 1135. The undisputed testimony of the plaintiffs is that at no time prior to the skidding of the car at the time in question did their car skid due to the icy pavement, although they had been driving at the same speed, 30 to 35 miles per hour. While there is some testimony by defendant's witnesses that when they saw the lights of plaintiffs' car some 850 feet ahead, they were going 50 miles an hour, there was certainly a jury question as to unreasonable speed.

The 'last clear chance doctrine', which was the sole issue presented to the jury so far as plaintiffs' cause of action was concerned, presupposes contributory negligence upon the part of plaintiffs. Restatement of Law of Torts, Vol. 2, Section 479; 38 Am.Jur. Negligence, Section 217; Annotation 119 A.L.R. 1042; Gilliam v....