Mazur v. Grantham

• Decision Date: 14 January 1964
• Docket Number: No. 51106,51106
• Citation: 255 Iowa 1292,125 N.W.2d 807
• Parties: Elizabeth MAZUR, Appellant, v. Lewis Ralph GRANTHAM and Dennis Keith Grantham, Appellees. Leo J. MAZUR, Appellant, v. Lewis Ralph GRANTHAM and Dennis Keith Grantham, Appellees.
• Court: Iowa Supreme Court

Page 807

125 N.W.2d 807

255 Iowa 1292

Elizabeth MAZUR, Appellant, v. Lewis Ralph GRANTHAM and Dennis Keith Grantham, Appellees.

Leo J. MAZUR, Appellant, v. Lewis Ralph GRANTHAM and Dennis Keith Grantham, Appellees.

No. 51106.

Supreme Court of Iowa.

Jan. 14, 1964.

Richard C. King, Council Bluffs, and Haney, Walsh & Wall, Omaha, Neb., for appellants.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellees.

THORNTON, Justice.

This is a rear end collision case. Plaintiffs, husband and wife, filed separate actions. The actions were joined for trial and so presented here. Plaintiff husband was the driver and owner of the car involved. Defendants are son-driver and father-owner of the other car involved.

The trial court sustained defendants' motion for judgment notwithstanding the verdict, and in the alternative granted a new trial if we held the first ruling to be erroneous, in the case of plaintiff husband; in the wife's case a remittitur of all the $14,500 verdict in excess of $6,000 under pain of a new trial.

I. Adverting first to the husband's case, in sustaining the motion for judgment notwithstanding the verdict, the trial court stated its reasons, failure to establish actionable negligence and plaintiff was guilty of contributory negligence as a matter of law in stopping on the highway in violation of section 321.354, Code of Iowa, 1958, I.C.A., and plaintiff's negligence was the proximate cause of the collision. Determination of these questions requires an examination of the evidence which the jury was entitled to find viewed in the light most favorable to plaintiff.

The collision occurred October 2, 1959, about 4:00 p. m. on Highway 275 in Pottawattamie County. Highway 275 runs north and south, it is a black top, two lane highway 21 to 22 feet wide, with an intermittent white line indicating the center line. It had been raining and misting prior to the collision. Plaintiff husband, with his wife beside him, was driving north. He intended to turn into a filling station on the left or west side of the highway to obtain information as to his route. As he approached the driveway to the filling station he slowed down, turned on his mechanical left-turn signal and it was working until the collision. He turned the signal on 300 feet before he reached the driveway and as he prepared to turn on the signal he looked in his rear view mirror and there was nothing coming behind. He could see to the rear about a quarter of a mile. There was traffic approaching from the north in the west lane, four or five cars. Plaintiff waited for this traffic to clear, 'from half a minute to a minute,' and was struck from the rear by defendants' car. Defendant driver was accompanied by his girl friend. She was seated in the middle of the front seat and they were talking. From the testimony of defendant driver and his passenger, the jury could properly find defendant did not see plaintiff's car until he was within 100 to 150 feet of it, that he first started to pass on the left, saw the oncoming traffic, applied his brakes and hit plaintiff's car at a speed of 20 to 30 miles per hour. Also from defendant's testimony, it was not then raining or misting, though the pavement was wet, and defendant's vision was in no way impaired by weather conditions. Plaintiff's car was driven forward about 25 feet and defendants' car stopped at or near the point of impact.

Running into a car in plain view is evidence of negligence. It is evidence of failure to keep a lookout, of lack of control and speed in violation of the assured clear distance statute, section 321.285, Code of Iowa, 1958, I.C.A. Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321. There was evidence of actionable negligence.

II. Turning to plaintiff's contributory negligence, defendants' contention is that plaintiff's stopping for a half a minute to a minute to make the left turn is a violation of section 321.354, Code of Iowa, 1958, I.C.A., and constitutes negligence as a matter of law. This may be true, but if it did not contribute in any way or in any degree directly to the collision it would not be contributory negligence. See Instruction No. 2.2, Iowa Uniform Jury Instructions. Not every act of negligence of a defendant is a proximate cause nor is every negligent act of a plaintiff contributory negligence. No citation of authority is necessary for the proposition that questions of proximate cause and contributory negligence are generally for the jury; only exceptional cases are decided as a matter of law. See rule 344(f), par. 10, Rules of Civil Procedure, 58 I.C.A. This is not an exceptional case as exceptional is there used. Reasonable minds could logically reach the conclusion plaintiff's negligence (if any) did not in any way or degree contribute directly to the collision. It is a matter of proximate and remote causation. Assuming so stopping is a violation of section 321.354, Code of Iowa, 1958, I.C.A., (which we do not need to decide to determine this case because the court did instruct a violation was negligence and on contributory negligence) the jury could properly find this violation, plaintiff's presence on the highway in a stopped position, was well known to defendant driver, or in the exercise of reasonable care should have been known to him, in time to have avoided the collision. From the pictures in evidence and the testimony, the jury could find defendant had an unobstructed view of the scene of the collision and plaintiff's car for at least a quarter of a mile. The evidence also shows there was ample room for plaintiff to have stopped on the east or right hand shoulder. In other words, after plaintiff's negligence and position of blocking northbound traffic were known to defendant in time to have avoided the collision, the defendant did not take adequate steps to do so, the jury could then logically find plaintiff's acts were so remote as not to contribute directly in any way or in any degree to the collision, but that defendant's failure as to lookout, control or speed was the proximate cause of the collision, that once defendant was apprised of the situation the collision would not have occurred except for his negligence.

Defendants rely on Pinckney v. Watkinson, Iowa, 116 N.W.2d 258, citing this statement at page 263 of 116 N.W.2d:

'Indeed, the evidence here might well have supported a holding that plaintiff was contributorily negligent as a matter of law, and certainly supports a finding that plaintiff had not established any legal justification or excuse for his stop at that time and place.'

This statement must be read with the circumstances of the case and the evidence in mind. In Pinckney the jury found for defendant and against plaintiff. The evidence showed plaintiff stopped on the right hand side of the pavement with all but two feet of his car off the roadway. He stopped to pick up two boys. The highway behind plaintiff was such the following defendant would not be aware of his stopping until within 150 to 200 feet. The defendant in Pinckney did not have a clear view of the situation in time to avoid the accident, as here. Also in Pinckney is this statement at page 263 of 116 N.W.2d:

'In the Wemer case [Jesse v. Wemer and Wemer Company, 248 Iowa 1002, 1007, 1008, 82 N.W.2d 82] we did say that the statutory prohibition did not contemplate and did not intend to include a 'stop' upon the highway where it is hazardous to proceed, or where the stop is made in response to a traffic command, or where the stop is made in the exercise of due care under the circumstances.'

Though such was not submitted to the jury, the evidence here would have sustained a finding the stop was made in the exercise of due care under the circumstances.

In addition to the Wemer and Pinckney cases, supra, defendants rely on Kassela v. Hoseth, 217 Wis. 115, 258 N.W. 340, 324; Gaches v. Daw, 168 Wash. 162, 10 P.2d 1111, 1114; and Northern Indiana Transit v. Burk, 228 Ind. 162, 89 N.E.2d 905, 17 A L.R.2d 572. Each of these cited and quoted from in the dissenting opinion in Jesse v. Wemer and Wemer Company, 248 Iowa 1002, 1021, 82 N.W.2d 82. The point of the dissent in Wemer was that the stopping in that case (stop by a truck to allow another truck to clear an underpass) required an instruction on section 321.354, Code of Iowa, 1954, I.C.A. The majority opinion held the stop was not within the section.

Of the cited cases, only Kassela v. Hoseth, supra, tends to support defendants, but the fact situation is such it does not assist in determining proximate and remote causation here.

In Danley v. Cooper, Wash., 381 P.2d 747 (1963); and Guerin v. Thompson, 53 Wash.2d 515, 335 P.2d 36, the Washington Supreme Court held under a statute similar to out section 321.354 and a statute prohibiting crossing the center lines in a four lane divided highway except at an established intersection, stopping to make a left turn at a place not so established constituted contributory negligence as a matter of law.

Dromey v. Inter State Motor Freight Service, 121 F.2d 361 (7th Cir.1941), holds an Illinois statute similar to section 321.354 has no application to a left turn situation. In Alex v. Jozelich, 248 Minn. 27, 78 N.W.2d 440, the Minnesota court held under facts not dissimilar to those before us, the trial court was in error in instructing stopping to make a left turn into a private drive under a statute identical with our sections 321.354 and 321.355 for our purposes was negligence as a matter of law.

It is sufficient here to hold plaintiff's stop for a left turn was made under such circumstances as to present a jury question on contributory negligence. Plaintiff husband is entitled to have the verdict reinstated unless we are to grant a new trial on defendants' motion.

III. In addition to granting the motion for judgment notwithstanding the verdict, the trial court granted defendants a new trial in the event its ruling on the first motion was erroneous. This...