Marr v. Olson, 47547

• Decision Date: 10 January 1950
• Docket Number: No. 47547,47547
• Parties: MARR v. OLSON et al.
• Court: Iowa Supreme Court

Page 475

40 N.W.2d 475

241 Iowa 203

MARR v. OLSON et al.

No. 47547.

Supreme Court of Iowa.

Jan. 10, 1950.

Zastrow & Noah, of Charles City, and R. G. Cummings, of Osage, for appellant, Allert Olson.

Larson & Carr, of Charles City, for appellant, Halvor Tinglestad.

Elwood, Lyons & Elwood, of Cresco, and Carl F. Conway, of Osage, for appellee.

HALE, Justice.

Action for damages growing out of a highway collision involving several cars and a farm tractor. The plaintiff's petition charges negligence of Tinglestad in failing to have his automobile under proper control; in driving his car from the right-hand side of the highway into the Bistline car on the left-hand side of the highway, thus causing it to run into or strike the car driven by Marr; and that Tinglestad was negligent in that he suddenly decelerated the speed of his car and suddenly changed the course of his car without giving any appropriate signal; that Tinglestad was negligent in failing to keep a proper lookout for cars driven upon the highway and prevent a collision therewith.

Plaintiff charges that the defendant Olson was negligent in operating the farm tractor and trailer upon the highway at the time and place of the accident without the proper lights and reflectors required by law. Plaintiff pleads that the negligence of Olson and the negligence of Tinglestad were both the proximate cause of the injuries, and that he himself was not guilty of contributory negligence.

Both defendants plead denial and Olson filed cross-petition against Marr, claiming negligence in driving at a high rate of speed, failing to observe Olson's tractor, failing to have his automobile under proper control under the conditions then existing, failing to yield to defendant Olson's employee the right of way, and failing to pass Olson's vehicle on the left-hand or north side of the highway although there was plenty of room for him to pass in the ordinary course of travel, and alleging that the negligence of the plaintiff was the sole and proximate cause of the damage to Olson's trailer.

Plaintiff filed reply to answer Olson, denying generally the allegations thereof, and also filed a reply to the answer of Tinglestad, denying the allegations as to contributory negligence in said answer.

Marr, the plaintiff was driving from his farm on the Mitchell road northwest of Osage in the evening of October 25, 1946. He left his farm about 5:30 p. m. in a 1946 Ford station wagon, with lights turned on, drove south on the Mitchell road to its intersection with highway No. 9 where he stopped for the arterial highway. He was passed at that point by Halvor Tinglestad, one of the defendants, who was driving east on the south side of highway No. 9 in his 1941 Ford pickup truck, with lights turned on, and in the direction of Osage. Marr followed Tinglestad at approximately 200 to 250 feet and at a speed of 40 to 50 miles per hour for about two miles, near the point where the collision occurred.

There are two hills on No. 9 near this point--Ryan hill, and about 1200 feet east is Sugar Creek hill. As Marr came over the top of Ryan hill he saw two pairs of lights approaching from the east on the other side of Sugar Creek hill. He continued to follow the Tinglestad car at approximately 200 to 250 feet until just west of the crest of Sugar Creek hill when the Tinglestad car suddenly decelerated and veered sharply to the left or north said of the pavement striking the first of two west-bound cars which was owned and driven by Bistline.

When Marr saw Tinglestad put on his brakes he also put on his brakes and slowed down to 20 miles per hour. Marr testified that when Tinglestad veered to the left he was 50 to 75 feet behind and going 20 miles per hour. Marr testified that after Tinglestad collided with the Bistline Ford pickup that it in turn turned left into the south line of traffic and sideswiped the Marr station wagon, causing Marr to lose control of his car. Whereupon, he ran into the rear end of a load of stone being drawn eastward by a farm tractor owned by the defendant Olson, and traveling without rear lights. There was evidence that it was dark at the time of the collision. Also evidence that Tinglestad had been drinking.

Trial to a jury. The court overruled motions for directed verdict separately made by defendants at the close of plaintiff's case. Verdict for the plaintiff. Each defendant filed a motion for judgment notwithstanding verdict, and a motion for new trial, which were overruled. Judgment for plaintiff against both defendants, and defendants appeal. Defendants each filed a separate brief and argument. Each adopted the assigned errors of the other.

Defendant, Tinglestad, assigns four alleged errors in substance, that the court erred in overruling motion (1) for a directed verdict at the close of plaintiff's testimony; (2) for a directed verdict renewed after all parties rested; (3) for judgment notwithstanding verdict, and (4) by adoption of errors assigned in defendant Olson's brief which consisted of two, (a) that the trial court erred in permitting witnesses to testify that it was dark, and (b) that the trial court erred in giving instruction 18 and in submitting to the jury the question of whether or not there was sufficient light to render clearly discernible persons or vehicles on the highway at a distance of 500 feet.

I. With reference to the first three assignments it might be said that they are too general in that the motions referred to have various grounds and the assignments therefore are indefinite. However, in argument there are only two brief points, and we may consider the argument with reference to them. These are (1) 'the plaintiff failed to prove by the greater weight or preponderance of the credible evidence that he was free from contributory negligence,' and (2) 'the plaintiff failed to prove by the greater weight or preponderance of the credible evidence that the negligence of the defendant Tinglestad, if any was shown, was the proximate cause or one of the concurrent causes of the injuries and damages for which the plaintiff brought this suit.' In the first place, the greater weight or preponderance of the evidence is for the jury, the requirement being that there must be sufficient credible evidence to constitute a dispute. The jury are the judges of the facts and if there is a disputed fact it is not for the court to determine, as a matter of law, the sufficiency of such evidence.

II. The defendant Tinglestad first argues the contributory negligence of the plaintiff Marr. He argues the fact that the plaintiff said he could not stop within 30 feet at 20 miles per hour, as required by section 321.431, Code 1946, I.C.A., together with the fact that he did not so stop although he had ample opportunity, notice, and warning to do so, makes the conclusion irresistible that either the brakes were inadequate or that the plaintiff was negligent in the operation of his Ford station wagon. We do not think that the evidence so shows. The plaintiff, as a witness, testified that he was approaching at 20 miles per hour, but that when struck by the Bistline car his foot was thrown off the brake and for that reason he failed to apply further pressure to the brake. What the defendant describes as plaintiff's indifference to conditions created by his own act of driving too closely behind Tinglestad, disregards the testimony of Marr, and it was for the jury to determine the extent of Marr's negligence in this respect, taking into consideration all the facts. The jury could have found that the...