Olson v. Truax

Decision Date24 July 1959
Docket NumberNo. 49784,49784
Citation250 Iowa 1040,97 N.W.2d 900
PartiesRussell OLSON, Appellant, v. Donald E. TRUAX and Leslie E. Truax, Appellees.
CourtIowa Supreme Court

Daniel Sanderson, Estherville, and Westfall, Laird & Burington, Mason City, for appellant.

Brown, Dresser & Kinsey, Mason City, and L. E. Plummer, Northwood, for appellees.

GARFIELD, Justice.

This is a law action to recover for injuries from a daytime collision between plaintiff's Chrysler sedan and defendant's loaded gravel truck at a country intersection of gravel roads. We disregard the fact Leslie E. Truax, alleged part owner of the truck was joined as defendant with his son Donald, the driver. At the close of the evidence the trial court directed a verdict for defendant Donald on plaintiff's claim on the ground of plaintiff's contributory negligence and the further conclusion that the doctrine of last clear chance, pleaded in Count II of plaintiff's petition, is not applicable. There was a jury verdict against plaintiff for $1,012.36 on defendant's counterclaim. From judgment thereon plaintiff has appealed.

There were no stop signs at the intersection nor was there any building, billboard or other obstruction to view. Plaintiff was driving east and defendant north. Defendant thus had the directional right of way under section 321.319, Codes, 1954, 1958, I.C.A., which provides, 'Where two vehicles are approaching * * * so that their paths will intersect and there is danger of collision, the vehice approaching the other from the right shall have the right of way. * * *.'

Plaintiff did not stop for the intersection nor accord defendant the right of way. Defendant swerved his truck to the left when it was about 5 to 10 feet from the sedan. The right front of the truck collided with the right rear fender and wheel of the sedan. The point of impact was six feet east and two feet south of the center of the intersection. The traveled north and south roadway was 24 feet wide, the east and west roadway 22 feet.

Because of his injuries plaintiff remembers nothing about the collision or the preceding events. He was thoroughly familiar with the intersection and drove through it frequently. Only eyewitness other than defendant was Elmer Weidler, a farmer standing about 100 rods north and a little west of the intersection. When he first saw the two vehicles the truck was over one-fourth mile south of the intersection and the sedan about 30 rods west of it. He watched the vehicles approach because he was confident there was danger of collision. Weidler testifies neither vehicle appeared to slow down or change its course except perhaps plaintiff's speed was a little less as he approached the intersection.

Defendant saw the sedan when his truck was about 300 feet south of the intersection and it remained in plain sight. He says the Chrysler slowed down and when 20 feet west of the intersection appeared to be coming to a stop but then increased speed to 15 miles per hour as it went into the intersection, he slammed on brakes of the truck and swerved to the left in a futile attempt to avoid the collision.

I. Plaintiff-appellant's first assigned error is the direction of verdict against him on his claim. He argues the issue of his freedom from contributory negligence should have been submitted to the jury and in any event he was entitled to have the doctrine of last clear chance submitted. At the outset, however, is the question whether the directin of verdict on plaintiff's claim was prejudicial to him in view of the jury verdict against him on the counterclaim. Of course plaintiff contends the ruling was prejudicial notwithstanding the jury verdict. Defendant argues such verdict was necessarily based on findings that plaintiff was negligent, such negligence was the proximate cause of the collision and defendant was free from any negligence which caused, or contributed in any way to, the collision and these findings are fatal to plaintiff's right of recovery on his claim.

There is no escape from the conclusion the jury verdict was necessarily based on the findings referred to and each of them is fatal to plaintiff's right of recovery under Court I of his petition. Even though plaintiff's contributory negligence would not prevent his recovery on the last clear chance theory asserted in his Count II, freedom from negligence of defendant which caused or contributed in any way to the collision would of course do so. Fagen Elevator v. Pfiester, 244 Iowa 633, 637, 56 N.W.2d 577, 579. The jury heard all the evidence of both parties bearing upon the collision. It was fully instructed that unless defendant was free from any negligence that caused or contributed in any manner to the collision he could not recover on his counterclaim. The jury was also instructed that plaintiff's claim was withdrawn and should not be considered without, however, stating that the reason for such withdrawal was plaintiff's contributory negligence.

There is no possible theory on which plaintiff was entitled to recover under his claim if, as the jury found, defendant was entitled to recover from plaintiff under his counterclaim. We must conclude, therefore, that if plaintiff's claim had been submitted to the jury he could not have recovered thereon. Unless we are to depart from the logic of many of our precedents, withdrawal of plaintiff's claim from jury consideration, under these circumstances, must be deemed nonprejudicial.

Harriman v. Roberts, 211 Iowa 1372, 1375-1376, 235 N.W. 751, 753, holds the erroneous striking of a counterclaim and refusal of submit it to the jury in an automobile collision case was without prejudice where the jury found for plaintiff on his claim. Although the counterclaimant was appellant, the logic of the decision is fully applicable here. These are brief excerpts from the opinion: 'There is no theory upon which both the plaintiff and the defendants were entitled to damages. * * * the jury found that appellant's negligence was the proximate cause of the accident, and that appellee was free from negligence contributing thereto. * * * While the ruling on the motion to strike the counterclaim * * * was erroneous, it was, in view of the verdict of the jury finding that the accident was the result of the negligence of the driver of the appellant's car, clearly without prejudice.'

Newman v. Blom, 249 Iowa ----, 89 N.W.2d 349, 352, is our most recent decision to the same effect as Harriman v. Roberts, supra.

In Davidson v. Vast, 233 Iowa 534, 544-545, 10 N.W.2d 12, 18, defendant counterclaimed against plaintiff and cross-petitioned against a part owner of the pickup truck plaintiff's decedent was driving. The trial court withdrew these pleadings from jury consideration and upon defendant's appeal this was assigned as error. We held the ruling was without prejudice in view of the verdict for plaintiff which necessarily included findings defendant was negligent, his negligence was the proximate cause of the collision and plaintiff's decedent was free from contributory negligence. Such findings, we said, 'were fatal to any right of recovery on the counterclaim or cross petition.' (Emphasis added.) As to the cross-petition defendant was in precisely the position of plaintiff-appellant here upon his claim and the defendant to the cross-petition was in the same position as defendant-appellee here.

In Shannon v. Gaar, 234 Iowa 1360, 1364-1365, 15 N.W.2d 257, 260, the trial court struck out plaintiffs' claim for exemplary damages. We held if there was error in this ruling, it was cured by the verdict for defendants.

Fagen Elevator v. Pfiester, supra, 244 Iowa 633, 637, 56 N.W.2d 577, 579, holds refusal to submit to the jury a division of defendant's counterclaim based on the last clear chance doctrine was nonprejudicial in view of the jury verdict for plaintiff on his claim, since such verdict necessarily included the finding plaintiff's driver was free from negligence which caused or contributed to the collision. See also Miller v. Griffith, 246 Iowa 476, 482, 66 N.W.2d 505, 509.

Other precedents holding that refusal to submit an issue to the jury is nonprejudicial where it returns a verdict based on findings fatal to recovery under the issue if it had been submitted include Smith v. Pine, 234 Iowa 256, 268, 12 N.W.2d 236, 243; Beck v. Dubishar, 240 Iowa 267, 271, 36 N.W.2d 438, 439-440; Slabaugh v. Eldon Miller, Inc., 244 Iowa 29, 38, 55 N.W.2d 528, 533. See also Cunningham v. Court, 248 Iowa 654, 662, 82 N.W.2d 292, 296-297; Janvrin v. Broe, 239 Iowa 977, 982-983, 33 N.W.2d 427, 431.

Some decisions from other jurisdictions which lend support to our conclusion that refusal to submit plaintiff's claim to the jury was not prejudicial to him in view of the verdict on the counterclaim are : McCary v. Alabama Great Southern R. Co., 182 Ala. 597, 62 So. 18, 23-24; McLain v. Pensacola Coach Corp., 152 Fla. 876, 13 So.2d 221; Smith v. Cooper, 73 Idaho 99, 245 P.2d 816, 819; Ambrose v. Indemnity Insurance Co. of North America, 124 N.J.L. 438, 12 A.2d 693, 695; Plott v. Howell, 191 N.C. 832, 133 S.E. 167; O'Brien v. Dunigan, 187 Or. 227, 210 P.2d 567, 572-573.

Quite in point is Simon v. Nelson, 118 Conn. 154, 170 A. 796, 797, where the jury was erroneously instructed that plaintiff-driver was negligent as a matter of law. (Here the trial court's direction of verdict was upon a like ground but the jury was told merely the plaintiff's claim was withdrawn from its consideration, without stating the reason therefor.) The jury returned verdicts for defendant against the driver (John C.) and passenger (Charles). The court held: 'The verdict of the jury * * * in the case of Charles Simon necessarily imported a finding that the operator of the defendant's car was not negligent. It follows that its verdict in the father's (John C.'s) case must have been based upon the same finding, and that the plaintiff in that case was not therefore harmed by the charge which...

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