Mueller v. Roben, 49154

• Court: United States State Supreme Court of Iowa
• Citation: 82 N.W.2d 98,248 Iowa 699
• Docket Number: No. 49154,49154
• Parties: Ross C. MUELLER, Appellee, v. Gerhart ROBEN, Appellant.
• Decision Date: 03 April 1957

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82 N.W.2d 98 248 Iowa 699 Ross C. MUELLER, Appellee,
v.
Gerhart ROBEN, Appellant. No. 49154. Supreme Court of Iowa. April 3, 1957.

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[248 Iowa 701] Breese & Cornwell, Mason City, for appellant.

Cardamon & Tapscott, Des Moines, for appellee.

PETERSON, Justice.

On the morning of May 20, 1955, plaintiff left Des Moines for Mason City driving his new Buick car. He drove north on U.S. highway 65. About 4 miles south of Rockwell a gravel road intersects the highway. Defendant was driving east on this gravel road, and when he came to the intersection he stopped at the stop sign about 12 to 16 feet west of the paving. This was about nine A.M. The day was clear, and the roads were dry. Defendant testified he looked north and saw a car about 900 feet away. He looked south and saw a car about 300 feet south of a bridge which was part of the highway. The north end of the bridge was 300 feet south of the intersection. The bridge was 80 feet long. Plaintiff testified defendant drove on the pavement and stopped, completely obstructing the east half of the road. Defendant, and the witness driving the car from the north, testified defendant drove across the pavement and proceeded east on the intersecting road. When plaintiff observed defendant drive on the pavement he turned his car to the right shortly after crossing the bridge. As shown by skid marks he put on his brakes, and his two right wheels ran along the shoulder until he reached the south edge of the intersecting road. His car then turned slightly toward the east with the skid marks of all four wheels showing. About 25 feet east of the paved highway his car struck a guard rail on the north side of the intersecting road and ran into a ditch 40 feet deep. Plaintiff suffered severe personal injuries. The jury returned a verdict in his favor in the amount of $5,953.03. Defendant filed motion for new trial, and for judgment notwithstanding the verdict, which was overruled. He has appealed.

Appellant assigns two errors on which he relies for reversal. 1. The court erred in not directing a verdict in favor of defendant, alleging plaintiff was guilty of contributory negligence as a matter of law in failing to have his car under control when approaching an intersection, contrary

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to provisions of Section 321.288, 1954 Code, I.C.A. 2. The trial court erred in submitting to the [248 Iowa 702] jury as a specification of negligence the question of whether defendant failed to keep a proper lookout.

I. The pertinent portions of Section 321.288 are as follows: 'The person operating a motor vehicle or motorcycle shall have the same under control and shall reduce the speed to a reasonable and proper rate: * * * 3. When approaching and traversing a crossing or intersection of public highways. * * *'

Plaintiff testified: he was driving between 65 and 70 miles an hour prior to reaching the bridge; he then slowed down, and when he saw defendant drive on the paved highway, he turned his car to the right; he drove his car as far east on the shoulder as possible without running off the shoulder; when he reached the north side of the intersecting highway he had his speed reduced to 35 miles per hour; after leaving the bridge he could not turn to the left, back of defendant, because a car was coming from the north; he could not stay in the east lane of travel because he would drive directly into defendant's car; his only unobstructed course of travel was to the right and in front of defendant. Defendant, and the lady driving the car from the north, both testified defendant had crossed the paving and was driving on east, and was several car lengths east of the pavement, when plaintiff drove his car into the ditch. The jury accepted plaintiff's statement as to what happened and unless there are prejudicial errors, the verdict of the jury is binding upon this court. The question is whether plaintiff reduced his speed to a reasonable and proper rate when approaching the intersection, taking into consideration all circumstances with which he was confronted. Appellant contends he did not, and that his car was not under control, and he was guilty of contributory negligence as a matter of law. Intersection cases are like so many other groups of cases, involving motor vehicle accidents, with which we are constantly confronted. There are rarely two statements of fact exactly alike. The facts in this case are different from those in any previous case before this court. We can only rely on cases which are somewhat similar, and on our analysis of the situation under the facts.

We have often held that contributory negligence is an issue of fact for the jury, except where contributory negligence [248 Iowa 703] of plaintiff is so palpable that reasonable minds cannot reach any other conclusion, in which case the question becomes one of law for the court. Barnes v. Barnett, 184 Iowa 936, 169 N.W. 365; Altfilisch v. Wessel, 208 Iowa 361, 225 N.W. 862; Tinley v. Chambers Implement Co., 216 Iowa 458, 249 N.W. 390; Minks v. Stenberg, 217 Iowa 119, 250 N.W. 883; Orth v. Gregg, 217 Iowa 516, 250 N.W. 113; Rogers v. Jefferson, 224 Iowa 324, 275 N.W. 874; Hawkins v. Burton, 1938, 225 Iowa 707, 281 N.W. 342; Schwickerath v. Maas, 230 Iowa 329, 297 N.W. 248; Davidson v. Vast, 233 Iowa 534, 10 N.W.2d 12; Beck v. Dubishar, 240 Iowa 267, 36 N.W.2d 438; Miller v. Griffith, 246 Iowa 476, 66 N.W.2d 505; Lauman v. Dearmin, 246 Iowa 697, 69 N.W.2d 49.

In Barnes v. Barnett, supra, plaintiff turned at the intersection of 36th Street and Ingersoll Avenue in Des Moines from the northerly lane of the Avenue into the southerly lane. Defendant was 300 feet away when he started to turn. Plaintiff claims he turned his car to the east close to the curb with plenty of room for defendant to pass. Defendant's speed was from forty to fifty miles an hour. Defendant's car struck plaintiff's car. We have circumstances somewhat similar to this case except there was a collision in the Barnes case, whereas in this case there was no collision. One question in the case was [184 Iowa 936, 169 N.W. 367]: Did defendant's driver have her car under control approaching the intersection? We stated in the case: 'But the existence of contributory negligence is peculiarly a jury question, and in our judgment the record

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does not reveal one of those cases where the evidence is so undisputed and convincing as to make the question one of law'.

In Murphy v. Iowa Electric Co., 206 Iowa 567, 220 N.W. 360, 362, this court said: 'The presence or absence of contributory negligence, generally speaking, is peculiarly a question for the jury, rather than the court, to detect and settle. * * * If there is a conflict in the evidence as to what the person accused of contributory negligence did or did not do, the question is then one for the jury. Likewise, even though it is known what was done by that individual in this regard, yet, if his conduct is such that there may fairly be different opinions with [248 Iowa 704] respect to it, and one man honestly and reasonably says it was in accord with ordinary prudence, while another just as sincerely and with equal reason contends it was not, then there is a jury question.' This was quoted with approval in Schwickerath v. Maas, supra.

In the case at bar appellant contends plaintiff was approaching the intersection at such high rate of speed that he failed to have his car under control. The evidence shows without dispute plaintiff started to reduce his speed as he drove on the south end of the bridge, which was 380 feet south of the intersection. It is true he was still driving 35 miles an hour when he ran into the ditch, after putting on his brakes and skidding for a distance of 220 feet. This would indicate a high rate of speed in the inception, but his speed alone was not such as to justify a ruling of contributory negligence as a matter of law. We considered the question of speed in Davidson v. Vast, supra [233 Iowa 534, 10 N.W.2d 161], where we said: 'Even if decedent were traveling at 50 miles per hour, we are not prepared to hold that he would thereby be guilty of contributory negligence as a matter of law. He had a right to assume, until he knew or in the exercise of reasonable care should have known otherwise, that any driver approaching from the east would comply with the statute governing the right of precedence.' To this statement we added in Beck v. Dubishar, supra: 'Whether appellee acted with reasonable caution in approaching the intersection is clearly a question for the jury under this record.'

In Rogers v. Jefferson, supra, we stated:

'Appellant contends that plaintiff was guilty of negligence per se, in that he violated section 5031 of the Code [now 321.288], which says that a person operating a motor vehicle shall have the same under control, and shall reduce the speed to a reasonable and proper rate when approaching and traversing intersections of public highways, for the reason that plaintiff admits that he did not reduce the speed of his car. * * *

'* * * ordinarily and generally, the absence or presence of contributory negligence is peculiarly a question...