Mathews v. Beyer

• Decision Date: 24 July 1962
• Docket Number: No. 50685,50685
• Parties: Maria MATHEWS, Appellee, v. Michael F. BEYER and Clarence N. Beyer, Appellants.
• Court: Iowa Supreme Court

Page 477

116 N.W.2d 477

254 Iowa 52

Maria MATHEWS, Appellee, v. Michael F. BEYER and Clarence N. Beyer, Appellants.

No. 50685.

Supreme Court of Iowa.

July 24, 1962.

Leighton A. Wederath, Carroll, and Rider, Bastian & Beisser, Fort Dodge, for appellants.

Wunschel & Schechtman, Carroll, for appellee.

GARFIELD, Chief Justice.

This is a law action to recover for personal injuries to plaintiff from an automobile accident on U. S. Highway 30 near Carroll, Iowa, about 5 p. m., December 4, 1960. Following trial there was a judgment on jury verdict for plaintiff from which defendants appeal. Hereafter, for convenience we disregard the fact Michael F. Beyer, owner of the car his brother Clarence was driving with the former's consent, was joined as a defendant--Clarence will be treated as sole defendant.

Plaintiff was a front seat passenger in a 1952 Plymouth car owned and driven by her husband. It was traveling west following the Beyer 1949 Chevrolet. Defendant, who lived at the southeast corner of the intersection of Highway 30 and a north and south road, desired to turn left to get to his home. An automobile and truck were approaching the intersection on Highway 30 from the west. Defendant testifies he didn't think he could make a left turn in front of this oncoming traffic and started to pull over toward the right shoulder of the paved highway. Plaintiff's husband says defendant stopped right on the highway, blocking his lane, Mathews 'hit his brakes right away' to avoid striking defendant's car, skidded to the left and collided with the eastbound automobile of one Menough.

The trial court submitted two charges of negligence against defendant: failing to (1) maintain a proper lookout for other vehicles using the highway, and (2) give a proper signal indicating his intention to make a turn continuously during the last 100 feet traveled by the vehicle before making a turn.

I. We find no merit in defendant's first assigned error based on overruling his motion for judgment notwithstanding the verdict because of claimed insufficient evidence that defendant's actions were the proximate cause of the accident and plaintiff was free from contributory negligence.

Of course in considering this assigned error it is our duty to view the evidence in the light most favorable to plaintiff.

It is argued Mathews was negligent in driving his car at a speed greater than would permit him to bring it to a stop within the assured clear distance ahead, in violation of section 321.285, Code 1958, I.C.A. However, Mathews had a right to assume until he knew, or in the exercise of reasonable care should have known, otherwise that other motorists would observe the law and exercise reasonable care. Specifically, Mathews had a right to assume defendant would not turn at the intersection or stop or suddenly decrease his speed upon the highway without giving a signal as required by Code sections 321.314-321.318, I.C.A.

Further, if defendant suddenly stopped or decreased his speed in Mathews' path without giving a proper signal the jury might find Mathews was thereby confronted by an emergency not of his own making which constituted a legal excuse for his violation of any statute defendant has invoked against him.

See in support of the views just stated Mongar v. Barnard, 248 Iowa 899, 905, 82 N.W.2d 765, 769-770, and citations; Harris v. Clark, 251 Iowa 807, 103 N.W.2d 215, and citations; Bunch v. Hanson, 251 Iowa 1097, 1107-1109, 104 N.W.2d 581, 586-587, and citations; 'Intersection Accidents in Iowa,' 10 Drake Law Review 111, 120-123. See also Pinckney v. Watkinson, 253 Iowa ----, 116 N.W.2d 258, 262 (filed July 24, 1962).

Mathews' right to assume defendant would comply with the law has an important bearing on the question whether the former was negligent. Of course this does not mean Mathews was not negligent merely because defendant was negligent. Bannister v. Dale, 252 Iowa 1031, 1035, 109 N.W.2d 626, 629, and citations.

It was for the jury to decide whether Mathews violated Code section 321.288, I.C.A. in not having his car under control or reducing its speed to a reasonable and proper rate when approaching the intersection, or section 321.307 in following defendant's car more closely that was reasonable and proper. Also whether, as above indicated, if there was such violation, defendant's conduct constituted a sudden emergency which furnished Mathews a legal excuse for the violation. See citations supra.

II. Further, the negligence of Mathews, if there was such, would not constitute a defense unless it was the sole proximate cause of the accident. That each person whose negligence concurs or combines to cause injury to another is liable therefor is so well settled citations for the proposition are hardly necessary. See, however, Law v. Hemmingsen, 249 Iowa 820, 826, 89 N.W.2d 386, 391, and citations; Paulsen v. Haker, 250 Iowa 532, 536, 95 N.W.2d 47, 50; Lockwood v. Wiltgen, 251 Iowa 484, 489-492, 101 N.W.2d 724, 728-729 and citations.

The question whether Mathews' negligence, if any, was the sole proximate cause was for the jury, not the court. In Chicago & N. W. Ry. Co. v. Chicago, R. I. & P. R. Co. (D.C.,N.D.Iowa), 179 F.Supp. 33, 55, Judge Graven says, from a review of our pertinent cases, this court 'has in its recent decisions tended to emphasize that questions as to proximate cause * * * and concurrent negligence are peculiarly questions for the trier of facts.' Lockwood v. Wiltgen, supra, indicates agreement with the quoted statement.

III. There was sufficient evidence to warrant submitting to the jury the two charges of negligence against defendant which were submitted--failure to maintain a proper lookout for other vehicles, and (2) to give a proper signal of his intention to turn.

Keeping a proper lookout is not a statutory duty in Iowa but motorists have a common law duty to exercise ordinary care under the circumstances in maintaining a lookout. Miller v. Stender, 251 Iowa 123, 129, 98 N.W.2d 338, 342, and citations; Mongar v. Barnard, supra, 248 Iowa 899, 904-905, 82 N.W.2d 765, 769, and citations; Cunningham v. Court, 248 Iowa 654, 660-661, 82 N.W.2d 292, 296, and citations.

Defendant admits he was aware a car was following him. Such awareness did not necessarily satisfy defendant's duty in maintaining a lookout. Proper lookout means more than seeing the object. It implies being watchful of the movements of the driver's own vehicle as well as the movements of the thing seen or seeable. It involves the care, watchfulness and attention of the ordinarily prudent person under the circumstances. Wiese v. Hoffman, 249 Iowa 416, 423, 86 N.W.2d 861, 865-866; Olson v. Truax, 250 Iowa 1040, 1048, 97 N.W.2d 900, 905; Kuehn v. Jenkins, 251 Iowa 718, 725-726, 100 N.W.2d 610, 614-615, and citations in these cases.

We have said several times that turning in front of an oncoming car is evidence of failure to keep a proper lookout. Hamdorf v. Corrie, 251 Iowa 896, 911-912, 101 N.W.2d 836, 845, and citations. We have also held a jury question on lookout is presented where a motorist turns left in front of a car approaching closely from the rear. Cunningham v. Court, supra, 248 Iowa 654, 661, 82 N.W.2d 292, 296.

Code section 321.314, I.C.A., required defendant to give an appropriate signal of his intention to turn his car in the event any other vehicle might be affected by such movement. Such signal might be given by hand and arm in the manner provided by section 321.318 or by directional signal device or light of a type approved by the department of public safety (section 321.317). Defendant does not claim he gave such a signal. Mathews and Menough testify they saw none. Defendant does say he gave a signal by opening his left car door. Such a signal does not comply with our statutory requirements. It was not error to submit to the jury the second charge of negligence against defendant. Cunningham v. Court, supra. See also Weber v. Hansen, 241 Iowa 904, 43 N.W.2d 766; Harrington v. Fortman, 233 Iowa 92, 8 N.W.2d 713.

IV. The jury could properly find plaintiff was free from contributory negligence. It is of course true she was required to make an affirmative showing of her freedom from such negligence. Proof thereof might be circumstantial as well as direct. Beezley v. Kleinholtz, 251 Iowa 133, 135, 100 N.W.2d 105, 107, and citations.

Plaintiff was born and raised in Germany and came to the United States less than a year and nine months before the accident. She had no interest in the automobile. She didn't know how to drive. She didn't read road signs or maps 'very good.' She was not feeling well the day of the accident and was leaning back against the front seat with her eyes closed buy was not asleep. She, her husband--a member of the United States army--and a little child were traveling from a fort in Virginia to Seattle on their way to a station in Alaska. Just what plaintiff could or should have done to prevent this accident or what she did or failed to do that would constitute contributory negligence, as a matter of law, is not apparent. See Lockwood v. Wiltgen, supra, 251 Iowa 484, 489, 101 N.W.2d 724, 727-728, and citations.

Defendant's argument that Mathews' claimed negligence is imputed to plaintiff because, it is said, they were engaged in a joint enterprise of moving from one part of the country to another is without merit. Before the husband's negligence could be imputed to plaintiff on the theory of joint enterprise there must be some evidence she had the right to control in some manner the operation of the automobile. Russell v. Chicago, R. I. & P. R. Co., 251 Iowa 839, 845-846, 102 N.W.2d 881, 886, and citations; Lockwood v. Wiltgen, supra, and citations; Case Note 9 Drake Law Review 48, 49-50, and citations in footnotes. There is no such evidence. Indeed it appears plaintiff lacked the ability to exercise any control over operation of the car.

V. Defendant's other assigned error is that the...