Lindquist v. Thierman

• Citation: 216 Iowa 170,248 N.W. 504
• Decision Date: 15 May 1933
• Docket Number: No. 41613.,41613.
• Parties: LINDQUIST v. THIERMAN et al.
• Court: United States State Supreme Court of Iowa

216 Iowa 170

248 N.W. 504

LINDQUIST

v.THIERMAN et al.

No. 41613.

Supreme Court of Iowa.

May 15, 1933.

Appeal from District Court, Hamilton County; O. J. Henderson, Judge.

This is an action for damages resulting from an automobile collision. The plaintiff attributes the collision to the negligence of the defendants. On the other hand, the defendants deny the negligence, and plead the negligence of the plaintiff as the sole and proximate cause of the accident. Accordingly, the defendants' brief stresses the point that the plaintiff's negligence contributed to the injury. In our judgment, the case turns upon this point, and we shall have no occasion to consider other features of the record. The jury rendered a verdict for the plaintiff, and the defendants have appealed.

Reversed.R. G. Remley, of Webster City, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellants.

E. H. Johnson, of Fort Dodge, for appellee.

KINDIG, Chief Justice.

The evidence is not materially conflicting. At the time of the events herein considered, the defendants operated a truck line out of Webster City. On the night of December 15, 1930, their employee, Bosley, was operating an empty truck in a westerly direction over highway No. 20 between Webster City and Fort Dodge. While thus traveling on this highway at a point about 7 miles east of Fort Dodge, the battery in the truck “went dead.” This left Bosley without power to operate the truck and without lights to guard the same from on-coming vehicles. When he discovered the failure of the electrical apparatus, he utilized the momentum of the truck to drive the vehicle upon the north berm of the paved highway, where it stopped, facing in a westerly direction. He then sought and found a telephone, and thereby talked with headquarters at Webster City. In the course of time, Thierman, in accordance with the request over the telephone, arrived in his sedan. Upon his arrival, Thierman parked the sedan on the south berm of the highway. As he thus parked his sedan, the front thereof faced in an easterly direction. The sedan was thus parked on the shoulder, near but south of the paved portion of the highway. At the time the sedan was so parked, the truck was north and somewhat east thereof, and located as before explained. Therefore the lights of the sedan pointed easterly so that they fell upon the truck. Apparently the purpose of this was to enable the defendant Thierman and Bosley to undertake the work of repairing the truck. Their efforts to repair the truck proved fruitless. They then attempted to turn the truck around and place it on the south side of the highway, back of the aforesaid sedan, in such a way that it might be attached thereto and then thereby towed to Webster City as a trailer. The truck facing as it was in a westerly direction while standing on the north berm of the highway, Thierman and Bosley contemplated that, when turned around and placed back of the sedan, it would then be headed eastward. There was a slight westerly slope in the highway. Thierman and Bosley so manipulated the truck as to get it into a position upon the highway pointing southeasterly and occupying a substantial portion of the north half of the paving. While they were engaged in this operation, they saw the lights of the plaintiff's car advancing rapidly toward them from the east. Bosley and Thierman then made frantic efforts to attract the attention of the driver of the on-coming car. It seems that Bosley ran eastward down the road and gesticulated to the best of his ability. The defendant, Thierman, jumped into his standing sedan and switched its lights on and off, and sounded its horn. Whereupon the plaintiff, Selma Lindquist, and her husband, G. L. Lindquist, according to their own testimony, were driving westward, toward the stalled truck, 35 or 40 miles an hour. They saw the light of Thierman's standing sedan, and supposed it was approaching them from the west. Hence the plaintiff's husband, who was driving the car in which the plaintiff was approaching from the east, claims to have been so blinded by the lights of the sedan, which were cast easterly over the highway, that he did not see or suspect the unlighted truck. As before stated, the truck, when finally abandoned by Thierman and Bosley, was located westerly from the sedan. This final position of the truck resulted from the attempt to turn it around. According to their contentions, the plaintiff and her husband did not see or suspect the presence of the truck until they were within 50 feet thereof. It was then too late to avoid the collision, and their car struck the side of the truck head on. The plaintiff sustained an injury to her knee. Also the car, a Hupmobile, in which the plaintiff and her husband were riding, was damaged to the amount of $163. Because the plaintiff's husband owned the Hupmobile, he assigned his claim for the damages to her. Wherefore the plaintiff sues in two counts. In the first count she claims as assignee of her husband $200 as damages to the Hupmobile. Under the second count she sues for $1,000 damages for personal injury to herself.

[1] After a trial to a jury, that body rendered a verdict of $200 in the plaintiff's favor. Judgment was duly entered on the verdict. An appeal was therefore taken to this court by the defendants. Their claim is that the trial court erred in submitting to the jury the question of the plaintiff's contributory negligence. This is true, the defendants contend, because the plaintiff's negligence is such as to bar her recovery. It may be noted here that the plaintiff pleaded that she and her husband jointly own the Hupmobile in which they were riding. She was occupying the front seat with her husband, who was driving at the time of the accident. In view of the form of allegation at this point, we have no need to distinguish between the alleged contributory negligence of the husband and the wife. Throughout her petition, the plaintiff claims that she and her husband were operating the automobile in which they were riding. According to the allegations of the plaintiff's petition, therefore, she and her husband were engaged in a joint or common enterprise. They both, according to the pleadings, participated jointly in the operation of the motorcar which carried them over the highway. The husband's negligence, then, in the execution of the common enterprise, became the contributory negligence which defeated the wife's recovery. Payne v. Chicago, R. I. & P. R. Co., 39 Iowa, 523;Nesbit v. Town of Garner, 75 Iowa, 314, 39 N. W. 516, 1 L. R. A. 152, 9 Am. St. Rep. 486;Carpenter, etc., v. Campbell Automobile Co. et al., 159 Iowa, 52, 140 N. W. 225;Cram, Adm'r v. City of Des Moines, 185 Iowa, 1292 (local citation, 1299), 172 N. W. 23.

[2] For convenience we shall refer to the husband and wife as the “plaintiffs.” Manifestly under the undisputed record, the plaintiffs failed to comply with the requirements of section 5029 of the 1931 Code. This is true because they were not able to bring their Hupmobile to a stop “within the assured clear distance ahead.” Their justification for such failure is that they were blinded by the bright lights on Thierman's sedan. Thierman's sedan, as before stated, was standing on the south berm of the highway, facing eastward. It is claimed by the plaintiffs that Thierman's sedan cast a light diagonally across the highway. So the plaintiffs claim they thought the sedan was approaching them and were thereby to some extent thrown off their guard. They inconsistently contend also that, if the lights of the sedan had been cast due east parallel with the highway, they would have seen the unlighted truck which occupied the north half of the paving.

As before explained, the driver, who is the plaintiff's husband, claims to have been blinded by the lights on the standing sedan. The fact that the lights from Thierman's standing sedan may have shown diagonally is not the real reason why the plaintiff's husband did not see the standing sedan. On the other hand, the plaintiff's husband did not see the standing sedan because of the bright lights thereon. While thus blinded, the plaintiff's husband drove for a long distance before he collided with the defendants' truck. If the plaintiffs did not stop their car within the assured clear distance ahead, they violated section 5029 of the 1931 Code. Wosoba v. Kenyon (Iowa) 243 N. W. 569. Section 5029 requires the driver of a motor vehicle to stop “within the assured clear distance ahead.” According to section 5029 above named, it is necessary that “any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway, * * * and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.” (Italics are ours.)

This statute has been before the court upon several occasions, but it has not been necessary before to define the term “within the assured clear distance ahead.” The plaintiffs rather inconsistently argue that they would have seen the truck had there been a light on the same. Such statement is contrary to their pleadings and the testimony that they did not see or anticipate the truck because of the blinding headlights on the sedan. In any event, the statute above quoted required the plaintiff and her husband to so control their car as to be able to stop it within the assured clear distance ahead. Many courts have considered the duty of drivers, under such circumstances, because of statutory requirements and because of the general law independent of the statute.

According to the Michigan Supreme Court, in Spencer v. Taylor, 219 Mich. 110, 188 N. W. 461, reading on page 462: “It is well settled that it is negligence as a matter of law to drive an automobile along a...