Miller v. Stender

• Decision Date: 22 September 1959
• Docket Number: No. 49632,49632
• Citation: 251 Iowa 123,98 N.W.2d 338
• Parties: Vincent C. MILLER, Administrator of the Estate of Dennis C. Miller, Deceased, Appellant, v. Ira STENDER, Appellee.
• Court: Iowa Supreme Court

Page 338

98 N.W.2d 338

251 Iowa 123

Vincent C. MILLER, Administrator of the Estate of Dennis C. Miller, Deceased, Appellant, v. Ira STENDER, Appellee.

No. 49632.

Supreme Court of Iowa.

Sept. 22, 1959.

Rehearing Denied Nov. 20, 1959.

Hess & Peters, Council Bluffs, for appellant.

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

THORNTON, Justice.

This is a law action to recover for the death of plaintiff's decedent in an intersection collision between a Triumph Motorbike ridden by him and a 1951 two-door Plymouth automobile owned and driven by defendant. The vehicles were traveling in opposite directions and defendant attempted to make a left turn across the path of decedent's motorbike. The jury failed to agree after deliberating 46 hours and the trial court sustained defendant's motion for judgment notwithstanding the jury's failure to return a verdict on the grounds there was no evidence of causative negligence on the part of defendant and the evidence showed as a matter of law decedent was guilty of contributory negligence. Defendant had moved for a directed verdict on such grounds at the close of the evidence. See rule 243(b), Rules of Civil Procedure, 58 I.C.A.

Plaintiff's appeal presents the question of the sufficiency of the evidence, to show defendant's negligence, to show the alleged acts of negligence or any of them were the proximate cause and that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff also complains of two instructions.

The collision occurred May 17, 1956, at 8:00 p. m. at the intersection of highway 192, a north and south highway, and Manawa Avenue, an east and west road, two and a half miles south of the city limits of Council Bluffs. The intersection is a T intersection. Manawa Ave. extends east from highway No. 192 but does not continue to the west. The scene of the accident is not within the limits of any municipality. There were no posted speed restrictions. Highway No. 192 was a black-top road, the black-top 27 feet wide. Manawa Ave. a dirt road with some gravel, its width does not appear. Both vehicles had the lights on. Defendant, alone in his car, a man 62 years old, was traveling south with intention of turning left onto Manawa Ave. Decedent, 19 years old, with Roy Epperson riding behind him, was traveling north. As defendant turned left across highway No. 192 the vehicles collided. Decedent and Epperson were thrown over defendant's car to the northwest. Decedent died two days later from injuries received.

Plaintiff alleges defendant was negligent as to lookout, yielding one-half traveled way, turning from direct course without first ascertaining such turn could be made with reasonable safety, failing to depart to the right of the center line of Manawa Ave. and turning left without yielding the right of way to decedent approaching from the opposite direction. Defendant contends the evidence is insufficient as to all of these, that there is no showing of proximate cause and decedent was guilty of contributory negligence as a matter of law as to lookout, control and speed.

From the evidence the jury was entitled to find defendant approached the intersection from the north at 20 m.p.h. reduced his speed 15 m.p.h. and made his turn at five m.p.h. at a point close to the center line of highway No. 192 and ten feet north of the north line of Manawa Avenue, 'angled in.' This is his own testimony. Defendant's blinker signal was on and working for over 100 feet. Each driver had a clear and unobstructed view of the other for at least 300 feet. Decedent approached from the south and the testimony as to his speed at the point of collision varies from 35 to 55 m.p.h. Plaintiff's witness, Epperson, testified on cross-examination: '* * * At the moment of the impact we were driving approximately 40 to 45 miles an hour. * * *'; on direct he had said 35 to 40 miles and testified they were going 35 to 40 m.p.h. when they passed the bait house about 250 feet south of the intersection. Defendant's witness, Mass, driving immediately behind defendant testified: * * * In my opinion the speed of the motor cycle was approximately 50 or 55. I observed then a collision. * * * It sounded like it was still gaining speed when it hit.' Mrs. Mass, riding with her husband, testified to 40 to 45 miles. Epperson testified they were 40 to 45 feet from defendant's car when it turned in front of them and said: '* * * I don't know really what Dennis Miller did at that time. I grabbed a little tighter; that's about all I could do because the car was so close. * * *' Mass testified, '* * * I stopped my car when he started to make his turn. I saw at that time there was going to be an impact.' Dr. Pump testified for defendant as follows: '* * * it appeared to be at that distance about 20 yards from the car, and then I heard the crash. * * *' Mrs. Coan, 18 years old, a witness for defendant, testified, '* * * I saw the Stender car turn in front of the motorcycle. Decedent was traveling in his own lane and looking straight ahead at least for the last four motorcycle lengths. The point of impact was five to ten feet north of the north line of Manawa Ave. in decedent's lane of traffic. The damage to the Plymouth was from the right door to the rear. The Plymouth stopped after the collision with the rear wheels on highway No. 192 and the front end on Manawa Ave. facing southeast.' The defendant testified he was 50 feet from the intersection when he first saw the motorbike, he looked again and made his turn, the motorbike was then south of the bait house, he says 350 feet south. He also said he didn't see it again until just before it hit him and, '* * * I had already made the turn before I saw the motorcycle. * * * I observed this car all the time as it came toward me.'

I. It is evident the crucial question is the position of the motorbike in relation to the intersection at the time defendant started to turn. Section 321.320 of the 1954 Code of Iowa, I.C.A., the code here applicable, provides:

'Turning left at intersection. The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this chapter, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right of way to the vehicle making the left turn.'

'321.314 When signal required. No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only * * * after giving an appropriate signal * * *.'

Defendant contends this is an intersection turn and he is entitled to the benefit of Section 321.320.

The testimony above set out shows decedent as close as 40 feet, 60 feet, in front of, and as far away as 350 feet from defendant at the time he started his turn. Under the circumstances the proposition of whether or not the turn could be made with reasonable safety and whether or not the approaching motorbike constituted an immediate hazard, was a question upon which reasonable minds might differ. It was for the jury to decide. Banghart v. Meredith, 229 Iowa 608, 294 N.W. 918.

II. The vehicles were meeting within the provisions of Section 321.298 requiring motor vehicles meeting to give one-half the traveled way by turning to the right, and turning left across the path of the motorbike is evidence of negligence. Law v. Hemmingsen, 249 Iowa 820, 89 N.W.2d 386; Hackman v. Beckwith, 245 Iowa 791, 64 N.W.2d 275; Soreide v. Vilas & Co., 247 Iowa 1139, 78 N.W.2d 41.

III. '321.311 Turning at intersections. The driver of a vehicle intending to turn at an intersection shall do so as follows: * * *

'Approach for a left turn shall be made * * * after entering the intersection the left turn shall be made so as to depart from the intersection to the right of the center line of the roadway being entered.'

Defendant's own testimony shows he violated this section. He 'angled in' ten feet before he entered the intersection. There is no conceivable way his course was such that he would depart from the intersection to the right of the center line of Manawa Ave. Defendant argues this section is only for the benefit of traffic approaching on the intersecting highway. This argument cannot be accepted. The section plainly says the left turn shall be made after entering the intersection and so as to depart to the right of the center line. The jury here could well find that if this section had not been violated the accident would not have happened. Decedent had the right to assume under the circumstances presented here, defendant would not attempt a left turn until he reached the intersection.

IV. The remaining ground of negligence submitted by the trial court is failure to keep a proper lookout. This is not statutory but a common law duty to exercise ordinary care under the circumstances in maintaining a lookout. Law v. Hemmingsen, 249 Iowa 820, 89 N.W.2d 386, 395; Hackman v. Beckwith, supra; and Soreide v. Vilas & Co., supra.

The testimony of defendant as to maintaining a lookout is inconsistent. However, it is not necessary to rest on his testimony. Mass, driving immediately behind defendant, said, as above set out, '* * * I stopped my car when he started to make his turn. I saw at that time there was going to be an impact.' Reasonable minds might differ as to whether or not the looking by defendant was sufficient under such circumstances. Also we have held turning in front of an oncoming vehicle is evidence...