Muirhead v. Challis
| Decision Date | 09 February 1932 |
| Docket Number | No. 41093.,41093. |
| Citation | 240 N.W. 912,213 Iowa 1108 |
| Parties | MUIRHEAD v. CHALLIS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cedar County; John T. Moffit, Judge.
Action to recover for personal injury resulting from a collision of automobiles. Trial to the court and a jury. Verdict and judgment for the plaintiff. Defendant appeals.
Reversed.Donnelly, Lynch, Anderson & Lynch, of Cedar Rapids, for appellant.
C. O. Boling and J. C. France, both of Tipton, for appellee.
The plaintiff was injured about 7 or 7:15 o'clock p. m. January 27, 1930, on a country road by reason of a collision of a Buick automobile owned and driven by the defendant, and a Ford sedan owned and driven by one Kemmerer, in which latter car the plaintiff, at the time in question, was riding to the right of the driver. The collision of the automobiles is the same one referred to in Sergeant v. Challis (Iowa) 238 N. W. 442. The evidence in the instant case is not materially different from that in the Sergeant Case, to which reference is hereby made for the material facts relative to the collision.
The plaintiff in his petition and amendment thereto alleges the following grounds of negligence upon the part of defendant: (1) “In driving his said automobile to the left of the center of the road and also to the left of the center of the travelled way at the time of said collision and while approaching the point of collision.” (2) “In driving his automobile upon the wrong or left side of the public highway, thereby colliding with the automobile of W. L. Kemmerer, with whom the plaintiff was riding.” (3) “That the defendant drove his automobile at a dangerous and excessive rate of speed and without regard to the safety of the plaintiff.” (4) “That the defendant failed to have his automobile under control and failed to bring it to a stop or turn it aside so as to avoid striking the automobile of W. L. Kemmerer in which the plaintiff was riding at the time of the collision and just prior thereto.” (5) “That the defendant was driving his car at a high, dangerous and excessive rate of speed at the time of the collision and while approaching the point of collision without having the same under such control that he could stop the same within the assured clear distance ahead.” (6) “That the defendant was driving his said automobile at the time of the collision and immediately prior thereto with only one dimmer light, thereby rendering it impossible for the driver of the car in which plaintiff was riding to determine the exact location of the defendant's car so as to enable him to avoid the same.”
[1] At the close of the evidence, the appellant moved to withdraw from the consideration of the jury the first two grounds of negligence hereinbefore mentioned, for the alleged reason that they “do not tender any issue of fact; do not plead a specific ground of negligence, being merely the conclusion and opinion of the pleader; too general and indefinite to form a basis of a right of recovery.” The appellant contends that the court erred in overruling said motion. There was no motion or pleading by the appellant attacking in any manner the sufficiency of the aforesaid allegations of the petition. As a basis for his contention, the defendant relies upon Cooley v. Killingsworth, 209 Iowa, 646, 228 N. W. 880, 883. We there held it to be error for the court to submit to the jury as a ground of negligence the general allegation that “the driver of the automobile operated and drove the same without regard for the rights and safety of the lives and property of others rightfully upon and using said highway,” and that, while said allegation follows, in a general way, the language of section 5028, Code 1927, it is too general and indefinite to be the basis for the right of recovery when attacked by motion. But our holding in said case is not authority for the contention of the appellant in the instant case. See Ege v. Born (Iowa) 236 N. W. 75, 77, 78, and Lange v. Bedell, 203 Iowa, 1194, 212 N. W. 354, 357. In the latter case, among other grounds of negligence, the plaintiff alleged that the defendant was driving upon the wrong side of the road. We there said:
It is apparent that the contention of the appellant raised by his motion to withdraw said averments of negligence from the consideration of the jury is without merit.
The appellant, at the close of the evidence, moved to withdraw the remaining allegations of negligence hereinbefore mentioned from the consideration of the jury, and the motion was overruled. This same proposition was presented to the court by requested instructions offered by the defendant and by exceptions to the instructions given by the court. We said in the companion case, Sergeant v. Challis (Iowa) 238 N. W. 442, 444: “There is evidence of lack of control, of speed greater than is reasonable and proper, having due regard to the conditions then existing, and of driving the automobile at the time of the collision and while approaching the point of collision with only one light burning, which is the substance of the remaining allegations of negligence.” The same is likewise true in the instant case. The appellant contends that said grounds of negligence should not have been submitted to the jury; it being his contention that it was improper for the court to allow the jury to find that any one or more of said remaining charges of negligence was the proximate cause of the collision and of plaintiff's resultant injury. This proposition relied upon by the appellant is fully considered in Sergeant v. Challis (Iowa) 238 N. W. 442, to which reference is now made, and therein determined adversely to appellant's contention, and repetition of what we there said is unnecessary.
[2][3] The appellant complains because of the manner in which some of the aforesaid alleged grounds of negligence were submitted to the jury. There is merit in appellant's complaint. The proposition relied upon by the appellant at this point was preserved by proper exceptions to the court's instructions. The court, in instruction No. 1, submitted all of the aforesaid grounds of negligence, and in a subsequent instruction, No. 13, told the jury, in substance, that, if they should find from a preponderance of the evidence that the collision of the automobiles was proximately caused by the negligence of the defendant in any one of the particulars alleged in plaintiff's petition, as amended (those hereinbefore set out), and that plaintiff was not guilty of any negligence contributing to the collision, then the plaintiff would be entitled to recover. While said instruction No. 13 is abstractly correct, it is the appellant's contention, properly raised by exceptions against the instructions as a whole, that the jury were permitted, under the instructions given by the court, to find the defendant negligent with reference to some of the specifications alleged, without direction or instruction as to the duty of the defendant relative thereto, and left it to the jury to speculate concerning the same. There is merit in this contention of the appellant. Negligence necessarily presupposes a duty which one owes to the public generally or to the individual complaining. It is the violation of that duty which constitutes negligence. See Peterson v. Chicago, Milwaukee & St. Paul Railway Company, 185 Iowa, 378, 170 N. W. 452, 454. In the cited case, we said: “When the facts upon which negligence is predicated are proven, and these may or may not establish negligence, then it becomes the duty of the court to instruct the jury fully as to what the law is applicable to the facts proven, so that the jury in considering the facts may know whether, under the law, negligence can be predicated upon the facts proven.”
[4] The court, in instruction No. 1, submitted the sixth ground of negligence hereinbefore quoted, that is, that the defendant was driving his said automobile at, and immediately prior to, the time of the collision with only one dimmer light, etc. Section 5044, Code 1927, gives the statutory requirement relative to the maintaining of headlights on motor vehicles while in use upon the public highway. Nowhere in the instructions does the court tell the jury of the statutory requirement or duty resting upon the defendant in this respect, and the jury were permitted to find the defendant guilty of negligence in this respect without being told of the statutory requirements relative to lights. Moreover, the defendant resides at Tipton. At the time of the collision, the defendant was traveling in a northerly direction, between Rochester and Tipton, going to his home. There is no town or repair station between the aforesaid two towns. The appellant testified, as a witness, that his bright lights “jiggled out north of Rochester,” and that he then turned on his dimmers; that the dimmers furnished the same candle power, or just as bright a light as the regular light, only it shoots the light a little closer in front of the car and not at a distance. It is provided by section 5048, Code 1927, that the operator of any motor vehicle may proceed toward his destination in a cautious and careful manner, in the event of a failure of one or more of his lights to operate. The appellant made request for an instruction in accordance with the provisions of section 5048, Code 1927, and the request was refused, and the appellant took proper exception to the action of the court. In view of the aforesaid testimony of the...
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