Matuska v. Bryant

• Decision Date: 02 May 1967
• Docket Number: No. 52498,52498
• Parties: Lillian MATUSKA, Appellee, v. William Henry BRYANT, Jr. and Donna Maxine Bryant, Appellants.
• Court: Iowa Supreme Court

Page 716

150 N.W.2d 716

260 Iowa 726

Lillian MATUSKA, Appellee, v. William Henry BRYANT, Jr. and Donna Maxine Bryant, Appellants.

No. 52498.

Supreme Court of Iowa.

May 2, 1967.

Brown, Dresser, Kinsey & Jolas, Mason City, for appellants.

Fitzgibbons & Fitzgibbons, Estherville, and John I. Halloran, Jackson, Minn., for appellee.

LARSON, Justice.

This law action for personal injuries resulted from an intersection collision between a 1962 Pontiac automobile driven by the plaintiff, Lillian Matuska, westward on Primary Highway No. 9, and a 1963 Ford sedan driven south on County Highway No. 322 by the defendant, William Henry Bryant, Jr. on the night of December 4, 1962. Apparently by consent or agreement of the parties it was tried as though the accident occurred subsequent to the effective date of chapter 430, section 1, Laws of the Sixty-first General Assembly, now section 619.17, Code 1966, which was July 4, 1965. Trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $15,000 and defendants appeal.

Three issues are raised in this appeal. The first questions the court's action in striking two specifications in defendants' allegation of plaintiff negligence and a refusal to instruct on those specifications; the second questions the completeness of the court instruction on lookout; and the third challenges the correctness of the court's instruction that the 'negligence of the plaintiff must be either the sole proximate cause or a concurring proximate cause of her injury or damage', to bar her recovery under the new contributory negligence law. We find no reversible error in these assignments, and affirm.

I. This accident occurred about one mile east of Buffalo Center at about 11:30 P.M. At this place Highway 9 is an 18-foot cement slab running east and west. Highway 322, a 23-1/2-foot blacktop road, starts at this point and runs north. There is an unmarked county road south of the intersection, and there are stop signs on both this road and on Highway 322 near the intersection. It is admitted that defendant failed to stop as he came to Highway 9, did not see plaintiff in time to avoid the accident, and in effect concedes his negligence and liability for damages if plaintiff was not guilty of negligence which was a proximate cause of her injury and damage.

Section 619.17, Code 1966, provides: 'In all actions brought in the courts of this state to recover damages of a defendant in which contributory negligence of the plaintiff, actual or imputed, was heretofore a complete defense or bar to recovery, the plaintiff shall not hereafter, have the burden of pleading and proving his freedom from contributory negligence, and if the defendant relies upon negligence of the plaintiff as a complete defense or bar to plaintiff's recovery, the defendant shall have the burden of pleading and proving negligence of the plaintiff, if any and that it was a proximate cause of the injury or damage. * * *'

Under these provisions, which we have held affect both remedial or procedural and substantive rights, defendants assumed the burden to plead and prove that plaintiff was negligent and that this negligence was a proximate cause of the injury and damage. See Schultz v. Gosselink, Iowa 1967, 148 N.W.2d 434. Defendants affirmatively alleged 'that plaintiff was contributorily negligent and that such negligence was a proximate cause of said collision * * *.' See Rule 344(f)(5), R.C.P. Their specifications included failure to keep a proper lookout, maintain proper control, and failure to reduce speed when approaching an intersection. In addition, they alleged in Specification D: 'In failing to exercise reasonable care under the circumstances in that plaintiff failed to apply the brakes of the vehicle which plaintiff was driving and thereby failed to avoid said collision, when plaintiff knew or in the exercise of reasonable care should have known that said brakes should be applied, in violation of the common law', and in Specification E: 'In failing to exercise reasonable care under the circumstances by turning to the left and thereby failing to avoid said collision, when plaintiff knew or in the exercise of reasonable care should have known that such movement was hazardous or dangerous, in violation of the common law.'

At the close of the evidence plaintiff moved to withdraw from jury consideration the allegations of plaintiff negligence in paragraph 8 of defendants' amendment to answer, and the trial court sustained the motion as to Specifications D and E and refused to submit requested instructions on these specifications or to instruct on those specifications as 'not material to this action.' A brief examination of the evidence presented seems necessary at this point.

II. The facts are not in great dispute. Plaintiff, driving west on Highway 9, testified she slowed down to forty miles per hour as she approached this intersection and the town of Buffalo Center and 'all of a sudden there was a flash of light and a crash. That's it.' She said the car she was driving was in good working order and the lights were on. She did not expect a car from the north to run past the stop sign directing all southbound traffic on Highway 322 to stop. She looked to the north before she reached the intersection, but did not know just where she was when she looked. She saw no car approaching from that direction.

The defendant driver testified, both by deposition and direct testimony, that the road surface was dry, with no snow or ice present, and that his car, including the lights, was in good working order. He said, 'as far as I can determine, I misjudged the location of No. 9. The first thing I recall seeing was headlights. I tried to stop. I couldn't stop in time. I went through the stop sign at the intersection. I assume I was going 60 miles an hour.' He also said he was visiting with a passenger and 'as a result, my attention was diverted from the road; therefore, I didn't see the various signs as I approached the intersection.' He admitted he saw plaintiff only a split second before the impact and said: 'I would assume she was going at a normal rate of speed', and that prior to the accident 'I hadn't reduced my speed.' To the question, 'Mr. Bryant, do you know of anything that Mrs. Matuska could have done to avoid this accident?' he replied, 'That is a hard question, but I don't know of anything.'

A highway patrolman and an officer from Buffalo Center investigated the accident and, while they could not state just where in the intersection the collision occurred, testified as to a tire mark from a little south of the center line of Highway 9 in the intersection which led up to one wheel of plaintiff's car, a distance of 36 feet, indicating the brakes had been applied. Her car came to rest on the southwest shoulder of the intersection blocking the south lane of traffic on Highway 9. It did not overturn.

Plaintiff further testified she was driving on her side of the road and was not over the center line until the moment of impact, that the first time she even knew there was a car coming south and the first time she saw it was when there was a flash and a crash, that she did not have time to apply the brakes and did not know what they hit. From the exhibits and this testimony it is clear the front of plaintiff's vehicle struck defendant's car at the left rear door and fender.

After the impact defendant's car went on to the south about 138 feet from the intersection, rolled, and stopped upside down against a railroad crossing sign.

III. The learned trial court apparently took the position that there was insufficient evidence to permit the jury to find as a fact that plaintiff did not apply her brakes or did turn left just before the collision. Regardless of that situation, we note that those specifications are predicated on acts which would amount to a lack of due care. Specifications A, B and C, alleging failure to keep a proper lookout, failure to have control and failure to reduce speed, were properly submitted and adequately covered the breach of common law and statutory duties, if any, involved.

IV. It may be that Specifications D and E were intended as a pleading of last clear chance which would necessitate a review of our previous holdings that, where the plaintiff has the burden of pleading and proving freedom from contributory negligence, the defense of last clear chance is not available to the defendant. Schreiber Mills, Inc. v. Lee County, 249 Iowa 746, 88 N.E.2d 811.

The situation here is much like that in Keuhn v. Jenkins, 251 Iowa 557, 561, 100 N.W.2d 604, 607, and our statement therein could be used here: 'Even with the benefit of the rule as to how we shall view the testimony, we fail to find in the record any evidence to justify the submission of that issue to the jury. There is not a scintilla of evidence in the record tending to prove that the defendant * * * ever saw the plaintiff or her automobile prior to the collision. There were no facts shown upon which such an inference could be drawn.'

We are satisfied defendant here failed to show anything from which the jury could infer that plaintiff had knowledge of defendants' presence prior to the collision, and must hold the specifications D and E could not be submitted.

V. Defendants also complain of the court's refusal to give Requested Instruction No. 3, which referred to all five of the specifications of negligence pleaded. It stated in part:

'The defendants have alleged that the plaintiff was negligent in failing to exercise reasonable care under the circumstances in that the plaintiff failed to apply the brakes of the vehicle she was driving, and thereby failed to avoid the collision, when the plaintiff knew or in the exercise of reasonable care should have known that the brakes should be applied. The plaintiff was required to use reasonable care to avoid the collision.

'If you find that the plaintiff, in the exercise of...