Lein v. John Morrell & Co.

• Decision Date: 02 April 1929
• Docket Number: No. 39396.,39396.
• Citation: 207 Iowa 1271,224 N.W. 576
• Court: Iowa Supreme Court
• Parties: LEIN v. JOHN MORRELL & CO.

207 Iowa 1271

224 N.W. 576

LEIN

v.JOHN MORRELL & CO.

No. 39396.

Supreme Court of Iowa.

April 2, 1929.

Appeal from District Court, Polk County; Herman F. Zeuch, Judge.

This controversy grew out of a collision between an automobile and a truck. The action is to recover damages for personal injuries and impairment of the automobile. A verdict for the plaintiff was returned by the jury, and the defendant appeals. Affirmed.Parsons & Mills and John W. Pendy, all of Des Moines, for appellant.

E. S. Tesdell, of Des Moines, for appellee.

KINDIG, J.

Lawrence Lein, the plaintiff and appellee, brought this action against John Morrell & Co., the defendant and appellant, to recover damages caused on January 14, 1927, by the negligence of the latter's agent and driver in carelessly operating a light delivery truck into and against the former's automobile at or near the intersection of Fremont and East Fourteenth streets, in Des Moines. Fremont street runs east and west, while East Fourteenth extends north and south and intersects the former at right angles. Appellant's truck was proceedingeastward on Fremont, toward East Fourteenth street. When entering East Fourteenth street, appellant's driver cut the corner and turned north thereon, near the curb at the northwest corner of the intersection. At that time, appellee was going southward on the right side of East Fourteenth street in a new Chevrolet coupé. So, in order to avoid a head-on collision, appellee attempted to swerve eastward, to the left. In doing this, appellee managed to get the body of his car past the truck; but the right front frame and wheel of the truck struck the right rear of the Chevrolet coupé whirling it around and causing its overturn. Because of the impact, appellee received personal injuries and his automobile was damaged. Hence this suit.

As a defense to appellee's claim, the appellant asserted: First, that it was not guilty of negligence; and, second, that the proximate cause of the accident was appellee's own carelessness. A new trial is asked because of various errors assigned. These complaints will now be given consideration.

[1] I. It is first suggested that the court wrongfully overruled appellant's motion to strike “the evidence of appellee and appellee's witnesses with reference to measurements taken and to the value of appellee's car.”

Clearly, this does not raise an issue here. Information is not furnished by appellant concerning that to which it objects. Under such an assignment, the court is compelled to search the record without a guide, in order to determine what appellant may have in mind. Many times this court has said that such an assignment is not sufficient. McAdams v. Davis, 200 Iowa, 204, 202 N. W. 515;Monona County v. Gray, 200 Iowa, 1133, 206 N. W. 26;Kroloff et al. v. Southern Surety Co., 197 Iowa, 1244, 198 N. W. 629;Brown v. Gray, 190 Iowa, 252, 180 N. W. 162;Holt et al. v. Doty et al., 193 Iowa, 582, 187 N. W. 550;Ryan Bros. v. Rate, 203 Iowa, 1253, 213 N. W. 218. Moreover, the assignment is not followed by brief points.

Nevertheless, we have read the entire record and failed to find any prejudicial error in the admission of testimony. While on the witness stand, appellant's driver stated facts properly laying the foundation for the measurements about which the general exception is taken. Also the various witnesses who testified concerning value were properly within the well-known rules relating thereto. This appears fully when the amended abstract is read in connection with the original. Manifestly there is no basis for reversal here.

[2][3][4] II. Grievance is founded upon the proposition that the evidence is not sufficient to sustain appellant's negligence. Obviously, this argument is without merit.

In this case there is a dispute concerning many of the material facts which determine whether or not there was negligence. If, then, there is substantial evidence of appellant's carelessness, the cause was properly submitted to the jury. The point of collision was north of the intersection on East Fourteenth street. Dispute arises regarding the exact distance. Some witnesses say two and others five feet. Furthermore, appellee furnished proof to establish the fact that the appellant's truck came speedily around the corner from the west, turning north into East Fourteenth street, and, while so doing, cut close to the curb on the wrong side of the street. A square turn was not made. Section 5033 of the 1927 Code provides: “The operator of a motor vehicle, in turning to the right from one street or highway into another, shall turn the corner as near the right hand as practicable, and, in turning to the left from one street or highway into another, shall pass to the right of and beyond the center before turning.” No excuse is offered by appellant in the case at bar for its statutory transgression. Violation of those legislative provisions constitutes prima facie evidence of negligence, and when, as herein, it was the proximate cause of the injury, will furnish the basis for damages. Rowley v. City of Cedar Rapids, 203 Iowa, 1245, 212 N. W. 158, 53 A. L. R. 375. Therein we said:

“It was alleged, along with other acts of negligence, that the automobile operated by Cary under the direction of the defendant Kennedy was proceeding in an easterly direction on one street, and turned to the north into another street, and that it was negligently turned to the left-hand side of the center of the intersection, ‘cutting the corner,’ and struck the plaintiff, who was proceeding across the street into which the car turned at the intersection. Section 26 of chapter 275, Acts of the Thirty-Eighth General Assembly (section 5033, Code of 1924), required that, in making such a turn, the car should pass to the right of and beyond the center of the intersection before turning. A violation of the statute was prima facie negligence. Carlson v. Meusberger, 200 Iowa, 65 .”

With the law thus established, and the facts as contended by appellee, there was sufficient foundation for saying appellant was negligent. Contradictory evidence was presented by appellant concerning what its driver did at the time and place. However, that does not mean that the court was wrong in submitting the cause to the jury. Rather, the very conflict itself furnished the issue upon which the jury was to pass.

Because of the foregoing, appellant's motion for a directed verdict on that ground was properly overruled.

[5][6] III. Likewise appellant asserts that it should have had a directed verdict because of appellee's contributory negligence. Basis for this contention is placed upon the theory that appellant, rather than appellee, was entitled to the right of way across the intersection.Section 5035 of the 1927 Code contains this provision: “Where two vehicles are approaching on any public street or highway so that their paths will intersect and there is danger of collision, the vehicle approaching the other from the right shall have the right of way. * * *”

Upon that legislative enactment, appellant seeks to substantiate appellee's contributory negligence. Plainly, however, that law can have no application to the facts and circumstances under consideration, for it is to be remembered the collision occurred before appellee had reached the intersection. He had not yet had an opportunity to yield the right of way. Here the accident did not happen because of appellee's dereliction in failing to give the right of way, but, rather, the proximate cause of the unfortunate happening was appellant's recklessness in cutting the corner. Even conceding that appellant had the right of way, that would not mean it could operate its truck on the wrong side of the street across the corner.

[7] On the other hand, appellant, when entitled to the right of way, could, under these facts, proceed, according to the statute, across the middle of East Fourteenth street...