Lemke v. Mueller

Decision Date08 April 1969
Docket NumberNo. 53172,53172
PartiesSadie A. LEMKE, Administratrix of the Estate of Otto B. Lemke, Deceased, Appellant, v. David MUELLER and Leslie Pechumer, Appellees.
CourtIowa Supreme Court

G. W. Templeton, Garner, William Pappas, Mason City, for appellant.

Erwin L. Buck, Britt, for appellees.

MASON, Justice.

This law action for damages was brought by plaintiff Sadie A. Lemke, as administratrix of the estate of her husband, Otto B. Lemke, against defendants, David Mueller and Leslie Pechumer, as the result of a rural intersection collision between the Lemke automobile, driven by Merle Brown, and a gravel truck owned by Pechumer, driven by Mueller. Injuries sustained in this accident caused Otto Lemke's death. Pursuant to trial a jury verdict for defendants was returned and plaintiff appeals from judgment thereon.

Plaintiff assigns four errors upon which she relies for reversal. The court erred in (1) sustaining defendants' motion to suppress evidence that the highway upon which the Lemke car was traveling at the time of the collision was by custom and usage established as a through highway; (2) suppressing evidence to show the acts of the Hancock County Board of Supervisors, the county engineer and road maintenance department in maintaining the highway as a through highway, and in holding the only manner such a road can become a through highway is by formal resolution of the board and maintenance of the proper signs thereon; (3) striking the testimony of Brown as to his state of mind as he approached the intersection where the collision occurred; and (4) giving instruction 7 telling the jury this highway, known and referred to as 'Old Highway 18', is not a 'through' or 'stop' highway.

July 24, 1965, Otto Lemke and Merle Brown were on a business trip traveling west from Britt on Old Highway 18, Lemke was riding as a passenger in the front seat of his automobile. At an intersection with a gravel secondary road about two miles of Britt the automobile collided with Pechumer's gravel truck coming from the north. 'Old Highway 18', formerly U.S. Highway 18, between Britt and Wesley was a hard-surfaced road. On April 11, 1962, it was removed from the state primary road system and returned to the Hancock County secondary road system. The Hancock Board of Supervisors did not adopt a resolution or take any formal action to designate this road as a through highway, but apparently did nothing to apprise the public of the change. Plaintiff attempted to show by offer of proof that this highway was maintained as a through highway by the board, the engineer, and the road maintenance men, that the public considered it a stop or protected highway, and that officials and residents of the area, including the driver of plaintiff's vehicle, Brown, believed it to be a through highway on the date of this accident.

At that time there was no stop sign at the entrance of the gravel road from the north. Mueller, a newcomer in the vicinity, testified he had never seen a stop sign at that point, did not know Old Highway 18 was considered a through highway and had only crossed it a few times prior to the accident.

Brown testified he was going between 40 and 45 miles per hour as he approached this intersection and did not reduce his speed, he looked to the right and left but did not see defendants' truck until immediately before the impact. There was testimony a truck the size of Pechumer's approaching from the north on the travel road could be seen for 1000 feet by a driver of an automobile coming from the east on Old Highway 18.

Mueller testified he was proceeding south at a slow speed as he came to this intersection and did not see the Lemke car until the moment they collided at or near the center of the intersection. His truck struck the Lemke car just in front of the right front door and overturned on the south side of the intersection. The Lemke car landed in the cornfield at the southwest corner of the intersection. Lemke was thrown from the automobile and incurred fatal injuries.

In her petition plaintiff charged Mueller with proximate negligence in failing to (a) keep a proper lookout, (b) have his truck under proper control, (c) yield the right-of-way and (d) stop or yield the right-of-way at the entrance to a through highway, contrary to section 321.321, Codes, 1962, 1966.

In answer to plaintiff's petition and as a complete defense defendants alleged plaintiff's decedent and Brown were negligent in failing to (1) keep a proper lookout, (2) reduce their vehicle's speed to a reasonable and proper rate when approaching an intersection of two highways, (3) yield the directional right-of-way to defendants' vehicle and (4) have their vehicle under control. Defendants also alleged the negligence of Lemke and his driver Brown was a proximate cause of the accident and plaintiff's damages.

The court submitted to the jury plaintiff's first two specifications of negligence, i.e., failure of proper lookout and control, and all defendants' specifications. No objections to the instructions, except instructions 7 and 14, appear and only the objections to No. 7 are argued here.

Prior to trial defendants moved to suppress evidence that Old Highway 18 at the time and place of this accident was by custom, usage, or informal action of the county board of supervisors a through highway because the same would be wholly incompetent, irrelevant and immaterial. They also alleged that even interrogation as to these matters would prejudice defendants, regardless of the rulings and admonition by the court and asked 'the court to exercise its inherent power and discretion for the orderly, fair, just conduct of the trial and to direct plaintiff's counsel not to question any witness before the jury with reference to the custom and usage with respect to the road upon which plaintiff's decedent was traveling being a through highway, nor to attempt to establish by testimony of members of the board of supervisors, county engineer, or highway patrolman with reference to any informal action or agreement by said board with respect to the stop signs remaining in place after said road was removed from the primary system, or directions to the county engineer or maintenance men with respect to the replacement of said signs, as might be necessary thereafter.' Defendants further moved 'to suppress any evidence * * * of custom, usage or intention to use said road as a through highway for any purposes or by any means whatsoever. That under Iowa law determination of the status of a highway, and particularly a through highway, is a matter of law and not a matter of fact to be determined by a jury.'

In ruling upon the motion and plaintiff's resistance thereto the court said:

'In attempting to submit to a jury the issue of a highway and its character as a through highway an impossible and insoluable situation is created. That plaintiff here, traveling on the favored road so established by custom and usage, would be entitled to the benefit of the rules of the road pertaining to such favored highways, and specifically in this case an instruction under Code section 321.321. With respect to defendant, on the other hand, a jury question would exist as to his knowledge of the custom.'

The court then reasoned:

'As (indicated) the (stop) sign had not been in place for at least a month, and, * * * perhaps five months. Consequently, they jury would have to make a finding as to whether defendant had knowledge so as to be required to yield under section 321.321 or, if the jury found he had no knowledge of such custom, then he would be entitled to the right-of-way under the general direction statute applying to the intersection of non-favored roads. The jury, therefore, could find itself in the position of having both a plaintiff and a defendant having the right-of-way under different statutes.'

In resistance to defendants' motion to suppress, plaintiff's counsel stated: 'I do want to apprise the Court, as far as plaintiff is concerned, while we think custom and usage is important, we think the real issue here is what the board of supervisors and the county engineer actually did in connection with this road. The fact that stop signs were constantly in place and the road was considered by them as a through highway and was held out to the public generally as a through highway, is the nub of our contention here. So while I do feel custom and usage have something to do with it, I don't want the Court to think that is the most important thing we are going on, we feel the other is stronger.'

We are satisfied the court did not err in sustaining defendants' motion to suppress evidence of custom and usage for the purpose of establishing the status or character of the highway on the date of this accident.

I. A 'through' highway in this jurisdiction cannot be established by usage or custom, but only by formal action of legislatively designated authorities in the manner prescribed.

The Fifth-seventh General Assembly in 1957 enacted what is now section 313.2 of the Code, which provides in part:

'Any portion of said primary road system eliminated by reconstruction or relocation shall revert to and become part of the local secondary road system, * * *.'

Section 306.2(5) provides: 'The term * * * 'local secondary road system' shall include all those secondary roads which are not now, or may not hereafter be, included in the farm-to-market road system.'

Section 306.1 provides that the secondary road system shall be subdivided into farm-to-market roads and local secondary roads, and section 306.2(4) states farm-to-market roads shall include those main secondary roads which have been designated as farm-to-market roads as the law may provide. It does not appear that this road has been designated as a farm-to-market road.

A local secondary road may be established as a through highway under the provisions of section 321.236(6).

A 'Through highway' means every highway...

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