Mongar v. Barnard, 49060

Decision Date07 May 1957
Docket NumberNo. 49060,49060
Citation248 Iowa 899,82 N.W.2d 765
PartiesWilliam MONGAR, by his next friend, Elias Mongar, Appellee, v. Frank BARNARD, Appellant.
CourtIowa Supreme Court

Killmar & Reynoldson, Osceola, for appellant.

Slaymaker & Wasson, Osceola, for appellee.

GARFIELD, Justice.

This is a law action to recover for personal injuries sustained in a motor vehicle accident at an intersection in the country in daylight on January 30, 1953. There was a jury verdict and judgment for plaintiff for $10,000 which defendant has appealed. For convenience we disregard the fact the action was brought by the next friend of the injured boy who was 19 at the time.

Defendant Barnard, a substitute rural mail carrier, was driving his 1950 Chevrolet car north on paved U. S. Highway 69 north of Osceola. He intended to turn left (west) at the Casey corner onto an east and west intersecting road. Plaintiff Mongar, driving his father's 1952 Ford truck loaded with eight tons of crushed rock, was following defendant on 69. Two cars were coming from the north on the same highway toward the intersection. The forward car, driven by Lowe, was so close defendant decided to stop until it cleared the intersection before he made his left turn. Plaintiff was unable to stop his truck and turned out to pass the Chevrolet on the right (east). In getting back onto the pavement plaintiff was 'knocked out' or 'passed out,' the truck went out of control, upset and plaintiff was seriously injured.

The case involves the rights and duties of a motorist about to make a left turn who stops his car before doing so and the rights and duties of another motorist who is following him. The principal duty plaintiff claims defendant failed to discharge is the giving of a proper signal.

The trial court submitted to the jury two charges of negligence against defendant: (1) In stopping his car suddenly in the path of plaintiff's truck without giving a proper signal of his intention to do so, and (2) In failing to keep a proper lookout.

I. Defendant first assigns error in the overruling of his motion to direct verdict based on claimed insufficient evidence of defendant's negligence and plaintiff's freedom from contributory negligence. In considering this claim of course the testimony will be viewed in the light most favorable to plaintiff. Soreide v. Vilas & Co., 247 Iowa 1139, 78 N.W.2d 41, 44, and citations. When this is done, although the evidence of defendant's negligence and plaintiff's freedom from contributory negligence may not be strong, we think it sufficient for submission to the jury.

Plaintiff testifies he was traveling around 45 miles per hour about 100 to 150 feet behind defendant. When the latter came to the Casey intersection 'he just up and stopped' without giving any signals of any kind. Plaintiff says he was doing nothing that would distract his attention from the Chevrolet, he saw he couldn't stop, two cars were coming south in the west lane he had to go on to the right (east) side of defendant, the road was rough, he was 'knocked out' or 'passed out' but tried to pull back onto the pavement. Plaintiff denies he intended to pass defendant's car before it stopped.

Defendant gives quite a different version. He testifies he knew plaintiff was following him but says it was at a distance of 400 to 500 feet when defendant turned on his left turn light signal and started to slow down about 300 feet south of the intersection. He also says he put his brake on and off alternately to flash his taillight, he could see the south bound Lowe car would reach the intersection about the same time he would, so he brought his car to a stop from one to three seconds at the intersection and plaintiff went around him on the right. It is conceded defendant gave no hand or arm signal.

Lowe testifies he saw defendant's left turn signal flash once as he, Lowe, approached. The Lowe car, going south, passed on the west side of defendant at about the same time plaintiff, going north, passed it on the east.

Plaintiff and his mother say that a few days after the accident defendant tole them 'He looked in the rear view mirror and saw the truck coming but he thought it was farther back than it was and he decided the cars coming from the north were getting too close, so he turned on his lights and stopped.' This statement, which defendant denies, lends some support to plaintiff's testimony that defendant 'just up and stopped' and to the conclusion he did not give a signal of his intention to turn left 'continuously during not less than the last one hundred feet * * * before turning,' as required by section 321.315, Code 1950, I.C.A. The statutes that apply here are found in the 1950 Code, I.C.A.

There can be little doubt that if defendant stopped his car suddenly in the path of plaintiff's truck without giving a proper signal, or failed to exercise ordinary care under the circumstances in the matter of maintaining a lookout for other vehicles which might be endangered by his stopping or turning, he was negligent. These are, in effect, the two charges of negligence submitted to the jury. We think there is substantial evidence, more than a scintilla, to support them.

Code section 321.315, above referred to, provides for signals of intention to turn. Section 321.316 requires an 'appropriate signal' of intention to 'stop or suddenly decrease the speed of a vehicle.' Although we have no statute which provides for a lookout, a motorist--especially when about to change his course or stop suddenly--has a common law duty to exercise ordinary care under the circumstances in the matter of maintaining one. Clayton v. McIlrath, 241 Iowa 1162, 1170, 44 N.W.2d 741, 746, 27 A.L.R.2d 307; Jesse v. Wemer & Wemer Co., 248 Iowa ----, 82 N.W.2d 82, 86.

'The common-law duty to exercise ordinary care under the circumstances, irrespective of statute, rests on a motorist at all times. Statutory rules of the road are cumulative and do not abrogate this common-law duty. They set the minimum, rather than the maximum, standard of care. Compliance with statute is not all that is required of a motorist. See [citations].' Clayton v. McIlrath, supra, at page 1168 of 241 Iowa, at page 745 of 44 N.W.2d.

The issue of plaintiff's freedom from contributory negligence was also for the jury. Plaintiff was entitled to assume, until he knew or in the exercise of ordinary care should have known otherwise, defendant would comply with the statutes and also exercise ordinary care. Worthington v. McDonald, 246 Iowa 466, 475, 68 N.W.2d 89, 94, 47 A.L.R.2d 135, and citations. Further, if defendant stopped suddenly in plaintiff's path without giving a proper signal the jury might find plaintiff was thereby confronted by an emergency not of his own making, which constituted a legal excuse for his violation of any statute defendant has invoked. See Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552, 554, and the numerous decisions that have followed it.

Harrington v. Fortman, 233 Iowa 92, 8 N.W.2d 713, closely resembles this case on its facts. We have cited it with approval several times. It holds there should have been submitted to the jury an issue similar to the first charge of negligence submitted here and that the question of freedom from contributory negligence was for the jury. See also, as supporting our conclusion as to contributory negligence, Leinin v. Boettger, 241 Iowa 910, 44 N.W.2d 73; Anderson v. Strack, 236 Iowa 1, 6, 17 N.W.2d 719, 721; Burbridge v. Briggs, 235 Iowa 12, 15 N.W.2d 909; Semler v. Oertwig, 234 Iowa 233, 254-255, 12 N.W.2d 265, 276; Schroeder v. Kindschuh, 229 Iowa 590, 294 N.W. 784.

An extended annotation to Dippert v. Sohl, 74 S.D. 236, 51 N.W.2d 699, 29 A.L.R.2d 1, commencing on page 5, entitled 'Sudden or unsignaled stop or slowing of motor vehicle as negligence,' reviews many decisions which have some application here on the issues of negligence and freedom from contributory negligence.

What we have said also disposes of defendant's claim of error in not withdrawing from the jury, for alleged insufficient evidence to support them, the two grounds of negligence which were submitted.

II. Defendant offered in evidence exhibit 1, a written statement plaintiff gave two weeks after the accident to a lawyer or adjuster from the insurance company that carried collision insurance on his father's truck and also the liability insurance on defendant's car. The statement contains some matters at variance with some of plaintiff's testimony. The trial court first withheld ruling on plaintiff's objection to the offer of the statement and later sustained the objection. However, the exhibit was received in evidence when defendant reoffered it at the close of the evidence.

We think the original exclusion of this exhibit and delay in admitting it were not sufficiently prejudicial to defendant to warrant reversal. Soon after it was produced defendant questioned plaintiff regarding parts of the exhibit that vary from his testimony. It was received before arguments to the jury and was before it during its deliberations. Generally error in the exclusion of evidence is rendered harmless or is cured by its subsequent admission. See Jaeger v. Hackert, 241 Iowa 379, 392, 41 N.W.2d 42, 49-50; Korf v. Fleming, 239 Iowa 501, 513, 32 N.W.2d 85, 92, 3 A.L.R.2d 270; Hatfield v. Iowa State Traveling Men's Ass'n, 180 Iowa 39, 44-45, 161 N.W. 123; Doran v. Waterloo, C. F. & N. R. Co., 170 Iowa 614, 633, 153 N.W. 225; 5 C.J.S. Appeal and Error § 1753.

III. Defendant charges misconduct of plaintiff's attorney for injecting into the case the fact defendant was protected by liability insurance. When plaintiff was being questioned about exhibit 1, referred to in Division II, he said in response to a question by his counsel the man who took it claimed to represent the company that carried the collision insurance on plaintiff's truck. Defendant made no objection to, or motion to strike, this answer or...

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