Luther v. Jones
| Decision Date | 21 June 1935 |
| Docket Number | 42916. |
| Citation | 261 N.W. 817,220 Iowa 95 |
| Parties | LUTHER v. JONES. |
| Court | Iowa Supreme Court |
Appeal from District Court, Clay County; F. C. Davidson, Judge.
This is an action for damages for personal injuries to the plaintiff arising out of an automobile accident or collision between the automobile driven by the plaintiff and a truck which was owned by the defendant and operated by an employee. There was a verdict for plaintiff and judgment accordingly. Defendant has appealed.
Affirmed.
Cory & Sackett, of Spencer, and Putnam, Putnam, Langdon & Fillmore of Des Moines, for appellant.
Cornwall & Cornwall and F. C. Lovrien, all of Spencer, for appellee.
On July 8, 1933, about 8 o'clock in the morning, plaintiff was driving his automobile out of the town of Spencer on paved highway No. 71. Near the northern boundary of the city the pavement on this highway, which is 18 feet in width, angles slightly northwest and at this point crosses Sixteenth street, running east and west, which street is a graveled road. The accident occurred a few feet south of this intersection. Plaintiff was going in a northerly direction traveling at about 12 or 15 miles per hour. As he approached this intersection he observed that there were two or three cars ahead of him, going in the same direction, and one or two cars coming from the opposite direction; that he could not safely turn to the left to pass the cars he was following because of the approach of the cars from the opposite direction, and it was therefore necessary for him to slow down. He released his clutch and let his car coast along. This highway, No. 71, is practically level at this point. As he was slowing down he was struck from the rear by the defendant's truck, which was loaded with lumber and was being driven by an employee, Virgil Hine.
The grounds of negligence submitted to the jury were: (1) In failing to exercise ordinary and reasonable care and prudence to keep a proper and sufficient lookout to discover position of plaintiff's automobile on the highway so as to avoid collision with the plaintiff's car. (2) In failing to use reasonable care so as to have the truck under control. The petition alleged that the plaintiff was not guilty of any negligence which contributed to the accident; that said accident was caused solely by the negligence and carelessness of the driver of the defendant's truck, and the acts of the defendant's driver were the proximate cause of the collision and resulting injury and damage, and the defendant, through his agent and employee, and said employee were negligent in the following particulars: The petition then sets out five specific grounds of negligence. By way of answer the defendant admits that there was a collision in which a car driven by the plaintiff and a truck owned by the defendant and driven by Virgil Hine, an employee of the defendant, were involved, but expressly denies that the said collision was due to any negligence on the part of his employee, and alleges the fact to be that the acts and conduct of the plaintiff constituted the sole and proximate cause of the accident; that the plaintiff was guilty of contributory negligence, in that he failed to exercise ordinary care to keep a proper lookout, in that by stopping or slowing down his car he failed first to see that there was sufficient space to make such movement in safety and failed to give a visible or audible signal to the drivers of the vehicles following of his intention to make such movement, in that the plaintiff, after passing to the left of the defendant's truck, returned to the side of the road on which the defendant's truck was driving, within less than 30 feet of the defendant's truck which had been passed, and that the plaintiff was contributorily negligent in failing to exercise ordinary care to have his automobile under proper control; that because of this the employee, Virgil Hine, was at the time and place of said collision faced with a sudden emergency not of his own making; and defendant further alleges that plaintiff's claimed injuries and damages were the sole proximate result of an inevitable accident.
There is an oil station located on the west side of highway No. 71, near this point where it intersects Sixteenth street, and one Dale Oleson, who was working at this station, saw the accident and testified for the defendant. He said he was standing in front of the station, killing time, waiting for a customer, and noticed a car pass a truck. The truck was loaded with lumber. After it got around the truck it was clear back on its own side of the road, about in front of the Standard oil station, and it slowed down suddenly, and the truck struck the rear end of the car a glancing blow on the side of the tire carrier, and it projected the car ahead a short distance, and the driver pulled ahead and off the road, and the driver of the truck did the same. The driver of the car got out of the car, walked around to the back, and talked to the truck driver. The witness said he didn't go across the street. He said that the car was about 20 to 25 feet in front of the truck when it turned back to the right side of the road in front of the truck. The truck was going quite slowly and was slowing down quite gradually. The paving at this point is approximately level and the shoulder to the east of the paving is level. There is only a slight ditch along the paving at this point, so small you would hardly call it a ditch.
The plaintiff testified that he never passed this truck at all; that he was going along, watching the car in front of him and slowing down, with his clutch released and possibly his foot on the brake, in order not to get too close to the car in front of him, when suddenly he was struck by the truck; and that he had not seen the truck and did not know of its presence until it struck him. The only witness for the plaintiff was the plaintiff himself, and the only witness for the defendant was the employee of the oil station. The driver of the truck did not take the witness stand.
At the close of the plaintiff's testimony there was a motion for a directed verdict, and also at the close of all the evidence the motion for directed verdict was renewed, both of which the court overruled. Following the overruling of said motions to direct, a motion to withdraw from the consideration of the jury the various grounds of negligence was submitted, with the result that only the two grounds of negligence above set out were submitted by the court. The defendant also, before argument to the jury was commenced, presented to the court seven instructions, all of which were refused. The case was submitted on instructions of the court, and a verdict in favor of the plaintiff and against the defendant was returned into court. Thereafter, a motion for a new trial and objections and exceptions to the court's instructions were filed in due time by the defendant and overruled by the court, and judgment was entered against the defendant for the amount of the verdict with interest and costs, from which judgment and the order of the court overruling the defendant's motion for a new trial and exceptions to the court's instructions, and from all and singular the judgments, orders, findings, and rulings made by said court prior to, during, and subsequent to said trial in any manner adverse to the defendant, appeal was taken to this court.
There are many specific errors assigned, upon which the appellant relies for reversal, consisting of the court's action in overruling the various grounds of defendant's motion for a directed verdict made at the close of the plaintiff's testimony and incorporated by reference in the renewal of defendant's motion for directed verdict made at the close of all the testimony; in overruling the various grounds of defendant's motion for new trial; in overruling defendant's motion to withdraw issues from the consideration of the jury; in refusing requested instructions; and in giving certain instructions to the jury. These are all set out in appellant's brief and argument and are carefully and earnestly argued. They may all be summarized in two main contentions: (1) That the plaintiff, having relied upon specific allegations of negligence, is required to prove such negligence by a preponderance of the evidence and cannot rely upon the general presumption of negligence from what took place, under the so-called res ipsa loquitur rule; that there was no evidence or proof of the specific allegations of negligence which the court submitted to the jury; that the mere collision between the truck and the car does not raise a presumption of negligence generally, where specific acts of negligence are pleaded. (2) That the instructions of the court imposed too great a duty upon the defendant, in that said instructions required the defendant to keep such a lookout for other vehicles upon the highway so as to avoid a collision therewith and to have his motor vehicle under control so that it might be stopped, slowed down, or turned aside to avoid a collision, said instructions imposing an absolute duty in the respects pointed out, where as under the law the only duty imposed is to exercise ordinary care, and that instructions which impose an absolute duty, and which at the same time instruct abstractly upon the duty of exercising ordinary care, are confusing, contradictory, and misleading.
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