Lawson v. Fordyce

• Decision Date: 10 March 1944
• Docket Number: No. 46375.,46375.
• Citation: 234 Iowa 632,12 N.W.2d 301
• Parties: LAWSON v. FORDYCE.
• Court: Iowa Supreme Court

234 Iowa 632

12 N.W.2d 301

LAWSON

v.FORDYCE.

No. 46375.

Supreme Court of Iowa.

Dec. 14, 1943.

Rehearing Denied March 10, 1944.

Appeal from District Court, Jefferson County; Edward L. Simmons, Judge.

Action at law to recover damages received by plaintiff when a cow which he was leading along a street became frightened, at the quiet and sudden approach from the rear of an automobile owned and driven by defendant, and lunged forward and against the plaintiff, knocking him down and breaking his hip. The plaintiff has appealed from a judgment, against him and for the defendant, in the amount of the costs, entered at the direction of the court at the close of all of the evidence.

The judgment is reversed.

MILLER, J., dissenting.

Ralph H. Munro, of Fairfield, for appellant.

McNett, Kuhns & McNett, of Ottumwa, for appellee.

BLISS, Justice.

Defendant's motion to direct a verdict for him alleged as grounds therefor the insufficiency of the evidence to establish any negligence on his part which was the proximate cause of the injury, and the failure of the plaintiff to establish his freedom from contributory negligence. The only allegation of negligence, to which we need give attention, is the admitted failure of the defendant to sound the horn of his automobile as it approached the plaintiff and the cow. There is no dispute as to the material facts. The plaintiff, a retired farmer fifty-seven years old, lives in the west part of the town of Libertyville, on the north side of County Road K, which extends east and west through the town. The traveled part of the road is twenty-six feet wide, and it is graveled. Plaintiff's home is approximately 480 feet west of the west side of Cowan Street. The road for about a half mile west of Cowan Street is almost level. About 10 o'clock in the forenoon of January 9, 1940, the plaintiff entered the road from the driveway out of his yard leading a gentle seven-year-old milk-cow which he was taking into Libertyville to sell. The snow had been removed from the surface of the road with a plow or grader, leaving the roadway somewhat icy. It was a rather clear, cold, frosty morning. Along the north edge of the gravel the snow had blown or been piled into a drift a foot or two high. For a little distance the plaintiff led the cow along the north side of the road. Plaintiff then crossed the center line and walked with the cow on the left side of the south or right track for a short time. Then he moved over onto the right side of the right track and walked within four or five feet of the south edge of the gravel. The cow walked just behind him and perhaps a little to his left. She had a halter on, and the lead rope was about four feet long. He held it about a foot from the outer end. Another car passed him shortly after he left his home. He glanced back over his shoulder, two, three or four times, as near as he could recollect, but saw no automobile approaching him from the rear. The cow walked along quietly. When they were between 50 and 100 feet west of the west side of Cowan Street, the cow gave a sudden lunge forward knocking him down and breaking his hip causing a very serious permanent injury. He looked up from the ground and saw the defendant and Mrs. Fordyce going past him to the east, in their automobile, on the north side of the road.

The defendant, seventy-four years old, is a retired farmer who lived on his farm a few miles west of Libertyville. In January, 1940, he owned a 1935 Chevrolet Coach in good mechanical and running condition. It ran smoothly and quietly, and “didn't make a noise like these Model T's”. It had a horn in working order. Defendant was driving and his wife sat by his side. They left home about 10 o'clock A.M. to go east on County Road K, through Libertyville to Fairfield. They saw plaintiff leading the cow out of the driveway onto the road when they were about 2,000 feet west of him. There was nothing to interfere with anyone's vision from Cowan Street for almost a half mile west, looking either east or west, at any point in that distance. The speed of the automobile did not exceed twenty miles an hour very much. It traveled along the south side of the road at that speed until about 200 feet past the Lawson driveway, when defendant gradually angled the car over to the north side of the road as he passed the plaintiff at a speed which he estimated at about five miles an hour. He never sounded the horn at any time. Both he and his wife saw plaintiff and the cow at all times. They observed the cow walking quietly along. The south side of the automobile was about eleven feet from the cow and about due north of it when Mrs. Fordyce saw the cow shy and jump against plaintiff and knock him down. Plaintiff testified that he neither saw nor heard the automobile at any time, until he saw it from where he lay on the ground.

It appears from the record that the first trial before Judge Daugherty resulted in a verdict for plaintiff for $2,500, which was set aside and a new trial granted because the court had submitted to the jury an allegation that “the defendant was guilty of negligence in approaching him too near the cow”, which allegation the court had previously stricken.

I. In passing upon the contested issues, all believable evidence and justifiable inferences favorable to the plaintiff must be accepted at their face value in determining whether he made a case submissible to the jury. The evidence is to be read and construed in the aspect most favorable to the plaintiff. Swan v. Dailey-Luce Auto Co., 225 Iowa 89, 93, 277 N.W. 580,281 N.W. 504;Holderman v. Witmer, 166 Iowa 406, 409, 147 N.W. 926;Lorimor v. Hutchinson Ice Cream Co., 216 Iowa 384, 390, 249 N.W. 220;Robertson v. Calgren, 211 Iowa 963, 972, 234 N.W. 824;Rhinehart v. Shambaugh, 230 Iowa 788, 790, 298 N.W. 876. “‘Every inference reasonably permissible in support of the issue should be carried to the aid of the evidence.’ Bauer v. Reavell, , 260 N.W. 39, 43.” McWilliams v. Beck, 220 Iowa 906, 909, 262 N.W. 781, 782;Huffman v. King, 222 Iowa 150, 157, 268 N.W. 144. The rule has been stated and repeated until it has become axiomatic that where reasonable minds may reach different conclusions from the facts presented, the case is one for the jury. Short v. Powell, 228 Iowa 333, 335, 291 N.W. 406;Lethrop v. Knight, 230 Iowa 272, 276, 297 N.W. 291;Wilkinson v. Queal Lumber Co., 203 Iowa 476, 480, 212 N.W. 682;Hanson v. Manning, 213 Iowa 625, 630, 239 N.W. 793;Roberts v. Hennessey, 191 Iowa 86, 103, 181 N.W. 798, 805, where we said: “It was for the jury to determine whether the appellant was guilty of negligence in failing to give the signal as he so approached the appellee.” We have repeatedly held that where there is any evidence tending to establish the negligence alleged it should be submitted to the jury. Lorimor v. Hutchinson Ice Cream Co., supra, 216 Iowa 384, 389, 249 N.W. 220;Huffman v. King, 222 Iowa 150, 152, 268 N.W. 144. Not only is it a question for the jury when the facts are in dispute, so that a court cannot substitute its judgment for that of the jury (Glover v. Vernon, 226 Iowa 1089, 1098, 285 N.W. 652), but it may also be true where the facts are not in dispute. Balcom v. City of Independence, 178 Iowa 685, 688, 160 N.W. 305, L.R.A. 1917C 120. As said in Murphy v. Iowa Electric Co., 206 Iowa 567, 572, 220 N.W. 360, 362: “Likewise, even though it is known what was done by that individual in this regard, yet, if his conduct is such that there may fairly be different opinions with respect to it, and one man honestly and reasonably says it was in accord with ordinary prudence, while another just as sincerely and with equal reason contends it was not, then there is a jury question.”

Appellant contends that the appellee's admitted failure to give any warning of his approach by sounding the horn of the automobile was the proximate cause of his injury. Appellee argues that there is no statutory provision which required him to sound the horn as he approached the appellant. It is true that there is no specific statutory provision requiring a motorist at all times to sound the horn when approaching a pedestrian from the rear. No such warning is required as an express statutory command. But section 5034.41, Code of 1939, requires every motor vehicle to be equipped with a horn capable of emitting a sound audible under normal conditions from a distance of not less than two hundred feet. The section further states: “The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a highway.” What does the phrase “to insure safe operation” mean? It must mean operation of a motor vehicle in such manner as, in all reasonable probability, it will not injure the motorist and those riding with him, or any other persons or property rightfully on and using the highway. What do the words “reasonably necessary” as used in the section mean? Do they not mean and call for the same conduct as the standard, reasonably prudent person would use under the same circumstances? If such a person would sound a horn, to not do so would ordinarily be negligence.

The appellant and the appellee had equal rights upon the highway. The rights and duties of appellant leading his cow and of the appellee driving his automobile were reciprocal. Each was required to exercise such ordinary reasonable care as not to injure the other or his property. Wine v. Jones, 183 Iowa 1166, 1170, 162 N.W. 196,168 N.W. 318;Vass v. Martin, 209 Iowa 870, 874, 226 N.W. 920;Whitman v. Pilmer, 214 Iowa 461, 467, 239 N.W. 686;Rolfs v. Mullins, 179 Iowa 1223, 1228, 162 N.W. 783;McMurry v. Guth, 229 Iowa 776, 779, 295 N.W. 133;Orth v. Gregg, 217 Iowa 516, 520, 250 N.W. 113;Roberts v. Hennessey, 191 Iowa 86, 95, 96, 181 N.W. 798;Handlon v. Henshaw, 206 Iowa 771, 773, 221 N.W. 489;Huffman v. King, supra, 222 Iowa 150, 155, 156, 268 N.W. 144. We...