Mercer v. Ridnour

• Decision Date: 22 May 1974
• Docket Number: No. 56086,56086
• Court: Iowa Supreme Court
• Parties: Donald MERCER, by his mother and next friend, Marie Needs, Appellee, v. Kenneth A. RIDNOUR et al., Appellants.

Page 625

218 N.W.2d 625

Donald MERCER, by his mother and next friend, Marie Needs, Appellee, v. Kenneth A. RIDNOUR et al., Appellants.

No. 56086.

Supreme Court of Iowa.

May 22, 1974.

Smith, Peterson, Beckman, Willson & Peterson, Council Bluffs, and Sanford A. Turner, Clarinda, for appellants.

Thomas, McGee & Thomas, Glenwood, and J. C. Irvin, Shenandoah, for appellees.

Heard before MOORE, C.J., and MASON, RAWLINGS, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

This law action for personal injuries and property damage arose out of a collision between a motorcycle and a tractor pulling a portable feed grinder. Defendants, operator and owners of the tractor, appeal from judgment based on a jury verdict for plaintiff motorcyclist. We reverse and remand.

For convenience we shall refer to the tractor operator as sole defendant.

September 9, 1970, plaintiff was riding his motorcycle west on a paved Page County highway. He was following an auto occupied by two friends.

Defendant, proceeding in the same direction toward an intersecting driveway, drove his tractor and attached feed grinder almost off the pavement onto the right shoulder to permit traffic to pass. Two autos, including plaintiff's friends' car, passed. Defendant then turned left toward the driveway. When his unit was extended at right angles across the pavement plaintiff's motorcycle struck the grinder.

The issues defendant raises all relate to jury instructions.

I. In instruction 7 trial court instructed the jury '* * * that both a 'motorcycle' and a 'farm tractor' are considered under the law to be 'motor vehicles' and are governed by the same laws as would govern the operation of an automobile.'

In the course of testimony plaintiff developed through examination of defendant and a highway patrolman the tractor had no turn signals or brake lights. Although § 321.383, The Code, now requires tractors to have a reflective device visible from the rear, this collision antedates enactment of that statute. These parties agree there was no requirement tractors be equipped with turn signals or brake lights.

Defendant, objecting to the instruction, requested that it be prefaced with the phrase 'or except as otherwise set forth herein,' pointing out equipment requirements for tractors and automobiles differ and the instruction as worded '* * * would permit the jury to speculate as to whether the tractor should have had turn signals, and so forth * * *.'

Instruction 10 informed the jury if defendant failed to give a hand and arm signal it would constitute negligence.

Defendant relies on our cases holding error may be committed when instructions lack specificity and are merely abstract statements of law, citing Teeling v. Heles, 195 N.W.2d 704, 708 (Iowa 1972); Gibbs v. Wilmeth, 261 Iowa 1015, 1021--1023, 157 N.W.2d 93, 97--98 (1968); Hartford Fire Insurance Company v. Lefler, 257 Iowa 796, 803--804, 135 N.W.2d 88, 92 (1965).

Plaintiff argues the instruction was clearly limited to the operation of a motor vehicle, not equipment requirements, and that the instructions, read together, correct any confusion caused by instruction 7. See McCarthy v. J. P. Cullen & Son Corp., 199 N.W.2d 362, 368 (Iowa 1972); Rosenau v. City of Estherville, 199 N.W.2d 125, 134 (Iowa 1972).

We are not as confident as plaintiff the jury could draw the 'operation' distinction he finds in instruction 7, especially where, as here, the lack of turn and stop devices had been emphasized in course of testimony. The instruction would have been aided by the introductory phrase incorporated in defendant's objection.

Because of our holding in the next division, however, we need not determine whether this issue, standing alone, would require a reversal. Upon re-trial, defendant's objection can be obviated.

II. Instruction 9 was the uniform instruction relating to negligence in stopping on the traveled portion of the highway. Instruction 11 was the uniform instruction relating to negligence in starting from a stopped position. Each theory was included in the specifications of negligence incorporated in the petition.

Defendant objected to both instructions on the ground there was no evidence his tractor ever stopped. The objections were overruled. Defendant claims this ruling was erroneous.

A trial court may submit issues presented by the pleadings only when there is substantial evidence to support them. Porter v. Iowa Power and Light Company et al., 217 N.W.2d 221 (Iowa 1974); Dobson to Jewell, 189 N.W.2d 547, 553 (Iowa 1971).

Plaintiff testified he was following his friends in the auto at a distance of a city block or half-city block, traveling approximately 45 to 50 miles per hour. On one occasion on his direct examination, and again on cross-examination, he testified he did not know whether the tractor was stopped or not. After he described how his friends' car had pulled out to pass the tractor, plaintiff was asked, 'How was the tractor sitting on the road? Would you explain to the Jury as best you can in your own words?' Plaintiff replied, 'He was mostly on the shoulder. He had one wheel on the pavement still.' This answer was the only evidence relied on by plaintiff as proof defendant had stopped his unit.

Defendant testified he was moving very slowly, as did plaintiff's friend, Benjamin Thomas.

We believe plaintiff's response to his attorney's leading inquiry, interpreted in the context of the preceding questions, did not provide the 'substantial evidence' necessary to justify instructions 9 and 11 relating to a stopped vehicle. Translated in light of his other responses, it is apparent plaintiff was referring to the position of the tractor with respect to the paved roadway, not with respect to its forward movement.

Under this record, we hold it was reversible error to submit instructions 9 and 11.

III. Defendant asserts there was insufficient evidence to warrant submission of future pain and suffering in instruction 18. The issue was properly preserved by appropriate objection below.

Relied on by defendant in support of this issue is...