Menke v. Peterschmidt

• Citation: 69 N.W.2d 65,246 Iowa 722
• Decision Date: 08 March 1955
• Docket Number: No. 48667,48667
• Parties: Carl MENKE, Appellant, v. Frank PETERSCHMIDT, Appellee, Frank PETERSCHMIDT, Cross-appellee, v. Carl MENKE and Coletta Menke, Cross-appellants.
• Court: Iowa Supreme Court

Page 65

69 N.W.2d 65

246 Iowa 722

Carl MENKE, Appellant, v. Frank PETERSCHMIDT, Appellee, Frank PETERSCHMIDT, Cross-appellee, v. Carl MENKE and Coletta Menke, Cross-appellants.

No. 48667.

Supreme Court of Iowa.

March 8, 1955.

Wilbur R. Dull, Ottumwa, Joseph L. Phelan and Pollard, Palmer & Lawse, Fort Madison, for appellants.

Napier & Fehseke, Fort Madison, and William R. Sheridan, Keokuk, for appellee.

THOMPSON, Justice.

On January 11, 1952, about 4:30 p. m., a collision occurred at an intersection of two highways in Lee County between an automobile owned by Carl Menke, driven with his consent by his wife, Coletta Menke, and a pickup truck owned and driven at the time by Frank Peterschmidt. Each of the roads was surfaced with gravel or loose rock, and there were no stop or slow signs on either at the intersection in question. It was still daylight. The Menke car was proceeding south on a north and south road, and the Peterschmidt truck was traveling west on the east and west road. Carl Menke commenced his action to recover claimed damage to his car; Peterschmidt cross-petitioned, bringing in Coletta Menke as an additional cross-petition defendant, alleging damage to his truck and asking a considerable amount for personal injuries sustained in the collision. In Count I of his cross-petition, the appellee (Peterschmidt) alleged certain specific negligences of the driver of the Menke car; Count II was based upon the doctrine of the last clear chance. The trial court submitted the issues raised by the appellant's petition, but on the appellee's cross-petition submitted only the last clear chance question raised by Court II. The jury returned its verdict for the appellee (cross-petitioner) against both appellants (the Menkes) in the sum of $17,068.65.

I. The appellants assign three errors: A, that the appellee was guilty of contributory negligence which continued to the time of the collision; B, the theory of last clear chance was not applicable to the facts in the case, and Coletta Menke had no reasonable opportunity or clear chance to avoid the accident; and C, the court was in error in admitting evidence concerning insurance coverage, to the prejudice of appellants.

In the view we take of the case, it will be necessary to discuss and determine only Assigned Error B. This concerns the question whether the driver of appellants' car, Coletta Menke, did in fact have a clear chance to avoid the accident and the resulting injuries to appellee after he had placed himself in a position of peril. The doctrine of the last clear chance has been considered by this court in many cases, and the proper rules to be followed often discussed. The underlying theory upon which the doctrine rests is in some confusion. We have said at times it is an exception to the rule barring recovery to one who has been guilty of contributory negligence; Gearhart v. Des Moines Railway Co., 237 Iowa 213, 21 N.W.2d 569; Lynch v. Des Moines Railway Co., 215 Iowa 1119, 245 N.W. 219; Bruggeman v. Illinois Central Railroad Co., 147 Iowa 187, 123 N.W. 1007. More often we have held to the causation theory as the real support for the rule, as put thus in Winegardner v. Manny, 237 Iowa 412, 413, 21 N.W.2d 209: 'The doctrine refers to negligence after negligence. It is a phase of the doctrine of proximate cause. The theory is that the later negligence becomes the proximate cause.' See also Groves v. Webster City, 222 Iowa 849, 270 N.W. 329. This latter theory has been criticized by some writers as troublesome where the negligence of the plaintiff continues up to the time of the accident, and so may be said to be as much a cause as the failure of the defendant to act after discovering plaintiff in a position of peril. The appellants here contend that the negligence of the appellee did so continue up to the instant of collision, and so the doctrine of last clear chance does not apply. But under the facts before us we think we need not determine the question. It is of interest only academically in this case.

II. It is the appellants' contention that the trial court should have sustained their motion for directed verdict on the cross-petition and later for judgment notwithstanding verdict. No complaint is made in this court concerning any error in submitting Carl Menke's own claim for damages to his car. We are aware of the oft-cited rule that the facts must now be considered in the most favorable aspect to the appellee which they will reasonably permit. There is also the rule that last clear chance, like other negligences, must be pleaded and the burden is upon the pleader to prove the facts making it applicable by a preponderance of the evidence; Nagel v. Bretthauer, 230 Iowa 707, 712, 298 N.W. 852, 854; Steele v. Brada, 213 Iowa 708, 239 N.W. 538. An absence of evidence, a failure to show something from which it may be fairly found the defendant had the last clear chance to avoid the accident and its attendant injuries, will be fatal to plaintiff's case.

III. It is well settled that the requisites to an application of the last clear chance doctrine are evidence that the defendant had 1, knowledge of plaintiff's presence; 2, realization of plaintiff's peril; and 3, the ability to avoid the injury to plaintiff thereafter. The defendant must have known of plaintiff's presence and had the means and opportunity, by the exercise of reasonable care, to know of his peril and to avoid injuring him. It is actual knowledge of plaintiff's presence that is required; Miller & Kizer v. Des Moines City Railway Co., 196 Iowa 1033, 195 N.W. 600; Carr v. Inter-Urban Railway Co., 185 Iowa 872, 171 N.W. 167. But this knowledge may be inferred from circumstantial evidence, in spite of denial by the defendant; Gearhart v. Des Moines Railway Co., supra; Gregory v. Wabash Railroad Co., 126 Iowa 230, 101 N.W. 761. Our cases make it clear there must be actual knowledge of plaintiff's presence; but as to the second specification above there is confusion as to whether there is required actual realization of his peril or only that as a reasonably prudent person the defendant should have realized it. For the purpose of clarification of this issue, we now hold that it is not necessary to show actual knowledge of the danger, but only that it should have been realized in the exercise of reasonable care. We said in the recent case of Winegardner v. Manny, supra, at page 415 of 237 Iowa, at page 211 of 21 N.W.2d:

'In order for defendant to have had actual knowledge of plaintiff's peril it is not necessary that he actually knew an accident would be inevitable if defendant failed to exercise care. It is sufficient if peril was so imminent that to a person of ordinary prudence the infliction of injury would seem probable if proper effort were not made to avoid it.'

In Orr v. Cedar Rapids & Marion City Railway Co., 94 Iowa 423, 427, 62 N.W. 851, 852, we approved an instruction which told the jury:

"If * * * you find that the plaintiff was negligent, still the defendant cannot avoid liability if you find from the evidence that plaintiff, at the time in question, was in a perilous position, and that defendant's employe in charge of said car saw plaintiff, and knew the fact that he was in peril, or might have so known by the use of ordinary care, and thereafter failed to use ordinary care to stop said car and prevent injury to plaintiff".

See also Roennau v. Whitson, 188 Iowa 138, 154, 175 N.W. 849, 855; King v. Chicago, Rock Island & Pacific Railway Co., 185 Iowa 1227, 1236, 172 N.W. 268, 273; 34 Iowa Law Review, 480, 489. It is well settled that the test of the third requirement above set forth is ability to avoid the injury by the exercise of reasonable care.

In this connection, reference should be made to language in Bridenstine v. Iowa City Electric Railway Co., 181 Iowa 1124, 1131, 165 N.W. 435, 438, where this court said:

'Even if it be conceded * * * that the motorman was unable to stop the car, this would not necessarily relieve the defendant of the charge of negligence if the failure of the motorman to control the car was due to the fact that he was handicapped in his effort by the result of his own carelessness in attaining such high rate of speed.'

What this statement seems to mean is that the doctrine of the last clear chance applies even though some previous negligence of the defendant has made it impossible for him to avoid the accident after he discovers the plaintiff in his position of peril. Such is not the law. It is defendant's negligence after he discovers or in the exercise of reasonable care should have discovered the plaintiff's danger that brings the doctrine into effect. We held contra to the quoted statement in Steele v. Brada, supra, 213 Iowa 708, 713, 239 N.W. 538, 540. We now expressly disapprove the quoted language in Bridenstine v. Iowa City Electric Railway Co., supra.

IV. Keeping in mind that the burden was upon the appellee to make his case under the last clear chance theory under the foregoing rules, we turn to the evidence. There is here of considerable importance the Iowa directional right-of-way statute at intersections, section 321.319, Code of Iowa 1950, I.C.A., which we set out:

'Where two vehicles are approaching on any public street or highway so that their paths will intersect and there is danger of collision, the vehicle approaching the other from the right shall have the right of way.

'The foregoing rule is modified at through highways and otherwise as hereinafter stated in this chapter.'

The Menke car was approaching the intersection on appellee's right, and so had the right of way under this statute. It is not an absolute right, but generally the statute has a purpose and meaning, and Mrs. Menke had a right to rely upon appellee respecting it and yielding the intersection to her if there was danger of a collision. Quite evidently he did not do so, and his reliance upon the last clear chance rule is an admission of...