Meyer v. City of Des Moines

• Decision Date: 18 September 1991
• Docket Number: No. 90-93,90-93
• Parties: Jerry MEYER and Lois Meyer, as Next Friends of David Lee Meyer, A Minor, and Jerry Meyer, Individually, and Lois Meyer, Individually, Appellees, v. CITY OF DES MOINES, Iowa, An Iowa Municipal Corporation, and Don Willis Prugh, Appellants.
• Court: Iowa Supreme Court

Page 181

475 N.W.2d 181

Jerry MEYER and Lois Meyer, as Next Friends of David Lee Meyer, A Minor, and Jerry Meyer, Individually, and Lois Meyer, Individually, Appellees, v. CITY OF DES MOINES, Iowa, An Iowa Municipal Corporation, and Don Willis Prugh, Appellants.

No. 90-93.

Supreme Court of Iowa.

Sept. 18, 1991.

Steven C. Lussier, Asst. City Atty., Des Moines, for appellants.

Mark Godwin, Isaacson & Clarke, Des Moines, for appellees.

Considered en banc.

LAVORATO, Justice.

The defendants appeal from jury verdicts in a bifurcated trial arising out of a personal injury action. The defendants raise issues concerning jury instructions, sufficiency of the evidence, and taxation of costs. We reverse and remand for new trial on liability only because of errors in several instructions.

I. Background Facts and Proceedings.

On March 23, 1987, fifteen-year-old David Lee Meyer was returning home from a friend's house on a moped. His moped collided with a garbage truck owned by the city of Des Moines. Don Willis Prugh was driving the truck.

Just before the collision, David was traveling southbound on a residential street in Des Moines. The truck was going north. Before impact, the truck passed a parked car in the northbound lane and moved into the southbound lane. The point of impact was in the southbound lane--David's lane.

Prugh saw David a distance away before the collision. David was looking down instead of ahead. The moped was going about twenty-five miles per hour, and the truck was moving slowly and braking.

David, who was not wearing a helmet, was knocked unconscious by the collision. He was admitted to a hospital in serious condition with multiple injuries including severe brain damage.

In January 1988 David's parents, on his behalf and individually, sued the city and Prugh. The Meyers alleged numerous specifications of negligence against the two defendants and sought damages from them because of the collision.

In their answer, the defendants asserted two affirmative defenses: David's negligence was the sole proximate cause of his injuries, and his damages should be reduced in proportion to his contributory fault. Later, the defendants were allowed to amend their answer to include the affirmative defense of failure to mitigate damages.

The district court, Judge George W. Bergeson, bifurcated the trial into two phases: liability and damage. This was done at the Meyers' request and over the defendants' resistance.

The liability phase of the trial was heard by a jury which found David to be fifty percent at fault and the defendants fifty percent at fault. Judge Theodore H. Miller, who presided at this phase of the trial, overruled the defendants' posttrial motions. In those motions the defendants claimed that the evidence was not sufficient to support the jury's apportionment of fault and that certain jury instructions were erroneous.

The defendants appealed. This court treated the appeal as interlocutory and dismissed it. See Iowa R.App.P. 2.

Judge Rodney Ryan presided at the damage phase of the trial, which was also heard by a jury. Pursuant to the jury's special verdict answers, Judge Ryan entered judgment for the Meyers and against the defendants in the amount of $136,500. Judge Ryan overruled the defendants' posttrial motions. The judge also overruled the defendants' application for retaxation of court costs.

The defendants appealed, raising numerous issues which we consider in the following order.

II. Jury Instructions.

A. Iowa Code section 321.275(4): Full use of a lane.

During the liability phase, Judge Miller instructed the jury in Instruction No. 8 on the specifications of negligence alleged by the Meyers. Specification 3 stated: "In depriving the plaintiff David Lee Meyer of his full lane of travel."

In Instruction No. 17 the judge expanded on this specification: "A motorized vehicle shall not be operated in any manner so as to deprive a motorized bicycle (moped) operator of the full use of a lane."

These instructions are based on Iowa Code section 321.275(4) (1987), which provides:

Persons shall not operate motorcycles or motorized bicycles more than two abreast in a single lane. Except for persons operating such vehicles two abreast, a motor vehicle shall not be operated in a manner depriving a motorcycle or motorized bicycle operator of the full use of a lane. A motorcycle or motorized bicycle shall not be operated between lanes of traffic or between adjacent lines or rows of vehicles. The operator of a motorcycle or motorized bicycle shall not overtake and pass in the same lane occupied by the vehicle being overtaken unless the vehicle being overtaken is a motorcycle or motorized bicycle.

The defendants objected to instruction numbers 8 and 17 in a timely manner. The gist of their objections was simply that section 321.275(4) only applies to vehicles traveling in the same direction. And since the evidence was that the garbage truck and moped were traveling in opposite directions, the instructions should not have been given.

The defendants urged in their posttrial motions as they do here that it was prejudicial error for the court to give these instructions. For reasons that follow we agree.

The key to the defendants' contention is whether the legislature intended the statute to operate in the manner the defendants argue. That intent is not clear so we apply statutory rules of construction to ascertain it. See Iowa Code § 4.6. One of those rules permits us to consider "former statutory provisions, including laws upon same or similar subjects." Id. at 4.6(4).

Iowa Code section 321.275 became law in 1969. 1969 Iowa Acts ch. 204. Then, the statute had twelve subsections. One of those subsections tracked what is now section 321.275(4)--depriving a motorized bicycle operator of the full use of a lane. Those subsections track various sections of the Uniform Vehicle Code (UVC) (rev. ed. 1968), which were incorporated into Traffic Laws Annotated (TLA) (1979). These TLA sections are simply rules governing the operation of motorcycles. And these rules were proposed by the National Committee on Uniform Traffic Laws and Ordinances in 1968.

The legislature has amended section 321.275 twice since 1969: in 1976 and in 1980. See 1976 Iowa Acts ch. 1165 § 45; 1980 Iowa Acts ch. 1094 § 28. However, the subsection in question--321.275(4)--remained intact.

Section 321.275(4) is substantially identical to section 11-1303 of the TLA. So we consider the language of section 11-1303 and the comments to it as a persuasive authority on legislative intent. Cf., Slager v. HWA Corp., 435 N.W.2d 349, 352 (Iowa 1989) (considering the Uniform Comparative Fault Act and the official comments to it as persuasive authority on legislative intent of Iowa's comparative fault statute which is patterned after the Uniform Act).

Section 11-1303 of the TLA provides:

(a) All motorcycles are entitled to full use of a lane and no motor vehicle shall be driven in such a manner as to deprive any motorcycle of the full use of a lane. This subsection shall not apply to motorcycles operated two abreast in a single lane.

(b) The operator of a motorcycle shall not overtake and pass in the same lane occupied by the vehicle being overtaken.

(c) No person shall operate a motorcycle between lanes of traffic or between adjacent lines or rows of vehicles.

(d) Motorcycles shall not be operated more than two abreast in a single lane.

(e) Subsections (b) and (c) shall not apply to police officers in the performance of their official duties.

TLA § 11-1303 at 329.

The historical note to subsection (a) of section 11-1303 explains it:

This section [11-1303] was added to the Code in 1968 to clarify rules for the proper use of roadways by motorcycles. UVC § 11-1303 (rev. ed.) (1968).

Subsection (a) allows motorcyclists to use the full width of a traffic lane and cautions drivers of all other motor vehicles not to encroach upon this use by occupying space in the same lane alongside the motorcycle. These rules supplement, for motorcyclists, the rules in UVC section 11-309(a) for driving on roadways with clearly marked lanes and UVC section 11-303 requiring passing at a safe distance to the left side of any overtaken vehicle.

Id. (emphasis added). The italicized language, and more specifically, the word "alongside" confirms the defendants' contention that section 321.275(4) applies to motor vehicles traveling in the same direction as the motorcycle and not in the opposite direction.

In our view, Iowa Code section 321.297(1)(b) is one of the rules of the road protecting moped operators from vehicles traveling in the opposite direction:

1. A vehicle shall be driven upon the right half of the roadway upon all roadways of sufficient width, except as follows:

....

(b). When an obstruction exists making it necessary to drive to the left of the center of the roadway, provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the roadway within such distance as to constitute an immediate hazard.

In short, the provision requires all vehicles to be driven only on the right half of the roadway unless an obstruction makes it necessary to drive left of center. If there is such an obstruction, the driver must still yield the right of way to all vehicles which are so close as to be an immediate hazard.

The Meyers alleged a specification of negligence based on the failure to yield the right of way. And the court gave a separate instruction--No. 16--based on section 321.297(1)(b). The Meyers received all they were entitled to under this last instruction. Their theory that Prugh deprived David the use of his lane was adequately covered under Instruction No. 16.

In sum, we hold that Iowa Code section 321.275(4) applies only to vehicles traveling in the same direction. The evidence is conclusive that the vehicles here were traveling in opposite directions....