Paulsen v. Haker, 49614

• Decision Date: 10 February 1959
• Docket Number: No. 49614,49614
• Citation: 95 N.W.2d 47,250 Iowa 532
• Parties: Velma PAULSEN, as Administratrix, and Harry Paulsen, as Administrator of the Estate of Mary Karen Paulsen, Deceased, Plaintiffs-Appellees, v. Ernest Frank HAKER and Bessie Mae Haker, Defendants-Appellants.
• Court: Iowa Supreme Court

Page 47

95 N.W.2d 47

250 Iowa 532

Velma PAULSEN, as Administratrix, and Harry Paulsen, as Administrator of the Estate of Mary Karen Paulsen, Deceased, Plaintiffs-Appellees, v. Ernest Frank HAKER and Bessie Mae Haker, Defendants-Appellants.

No. 49614.

Supreme Court of Iowa.

Feb. 10, 1959.

Elliott, Shuttleworth & Ingersoll, Cedar Rapids, and James T. Remley, Anamosa, for appellants.

Rees & Remley, Anamosa, for appellees.

THOMPSON, Chief Justice.

Plaintiffs are the administrators of the estate of their daughter, Mary Karen Paulsen, who was killed as a result of a collision between an automobile in which she was riding as a passenger and another driven by Ernest Frank Haker and owned by both defendants. The issues were submitted to a jury, which returned a verdict for the plaintiffs in the sum of $15,000.

On January 1, 1956, in the early afternoon Richard McCalmant, then aged 16, was driving a 1955 Chevrolet automobile owned by his father, George William McCalmant. He picked up Donald George Carstensen, aged 17, the decedent, Mary Karen Paulsen, 16, and Janent Kay Thompson, about the same age, in the town of Wyoming. The two girls were killed in the accident, and neither of the boys, who survived, remembers anything about it. McCalmant had no recollection of any of the events of the afternoon, but Carstensen recalled what had happened during the early part of the drive and until they were within perhaps a mile of the point of the accident. He testified that up to that point he was riding in the front seat beside the driver and the two girls were in the rear. The position of the occupants of the car seems to be sufficiently established by this testimony, and is not challenged by the defendant-appellant.

The McCalmant car, proceeding south on a county road, reached Highway No. 64 about three p. m. Highway No. 64 is an arterial highway paved 18 feet wide. It was guarded on the north at the intersection of the county road on which the McCalmant car was traveling by a stop sign on a post 4 feet 4 inches in height located 51 feet north of the center of the paving on No. 64. As has been indicated there is no evidence from the occupants of the McCalmant car as to what happened at the intersection. However, as it reached the stop sign a 1953 Buick automobile owned by the defendants and driven by Ernest Frank Haker, who was alone, approached from the west. Haker testified that he was driving at about 60 miles per hour, and that he observed the McCalmant car coming along the county road from the north when he was 300 to 400 feet from the intersection. He said it stopped after passing the stop sign, then when he was about 50 to 100 feet from the intersection it suddenly started up and 'darted' across the pavement in frong of him. He testified the car was about 8 to 10 feet from the pavement when it stopped, which seems to mean it had proceeded some 30 feet or more past the stop sign before obeying it. Haker did not sound his horn, apply his brakes, or change the direction of his car, and it hit the McCalmant car somewhat back of the right center. The McCalmant car had crossed the north half of the pavement and apparently the front wheels were some four or five feet south of the south edge when it was struck. The Chevrolet car came to rest 103 feet east and slightly south of the center of the intersection, on top of a steel gate in a fence. It had destroyed 40 feet of the fence in its path. The fence was 32 feet south of the south edge of the pavement on No. 64. The Buick car was about 56 feet east of the Chevrolet, also along the fence. The Chevrolet was almost entirely demolished, the Buick considerably damaged. Plaintiffs' decedent and Janet Kay Thompson were killed in the collision; Richard McCalmant was badly injured and was unconscious for 73 days; Carstensen received a broken leg, and says 'I got hit pretty hard in the stomach; I had kidney trouble, brain concussion, I guess.' Most of the facts set forth above are not in serious dispute, and all of them have some substantial support in the testimony.

I. Plaintiffs' petition charged the defendant driver with negligence according to these specifications: (a), driving at an excessive speed under the existing circumstances; (b), in failing to have his automobile under control; (c), in failing to keep a proper lookout; and (d), in failing to have his car under proper control and reducing speed to a reasonable and proper rate when approaching and traversing a highway intersection. These were each submitted to the jury, with definitions which are not in themselves challenged here, except as it is contended that there was no evidence to support them. Defendants assign three errors relied upon for reversal: 1, refusal of the trial court to direct a verdict in their favor; 2, a closely related proposition, denial of their motions to withdraw pleaded issues from the jury, which would necessarily have resulted in a directed verdict; and 3, denial of their motion for judgment notwithstanding verdict and for new trial.

Two basic questions are involved in this appeal: first, was a jury question engendered on the issue of the negligence of Ernest Frank Haker, the driver of defendants' car; and second, was there sufficient evidence of the freedom from contributory negligence of Mary Karen Paulsen, plaintiffs' decedent, to warrant submission of this issue? We are not concerned here with the burden of proof on either of these points, but only with the sufficiency of the evidence to raise a jury question upon one or both. We shall first consider the matter of the showing of the negligence of the defendant driver.

II. We are not here concerned with the negligence, if any, of the driver of the McCalmant car, unless it was the sole cause of the accident so that no negligence of the defendant Haker concurred therein. Law v. Hemmingsen, Iowa, 89 N.W.2d 386, 391. And the principle that, when we are considering the propriety of a ruling upon a motion for directed verdict the evidence must be taken in its aspect most favorable to plaintiff it will reasonably bear, is so well settled that citation of authority is needless. Likewise, we need not elaborate upon the rule that a traveler upon the highway has a right to assume that others will proceed with due care and according to law, until in the exercise of reasonable care he knows, or should know, otherwise. It is in the light of these well-established legal maxims that we must consider the case before us.

The true rule is that the statutory right of way is not a guarantee of safety, but that the driver on the protected road must use reasonable care under the existing circumstances for his own safety and that of others. Likewise, in connection with the duty to keep a proper lookout, we think it is his duty to make reasonable observation of all surrounding circumstances, including intersections and other traffic which may be in fair view on intersecting roads, and to use such care as an ordinarily prudent man would do in the light of everything disclosed by such observations. It is true the trial court's instruction No. 11 limited this duty to keeping a lookout for other vehicles 'on the highway on which he was driving.' This was error prejudicial to the plaintiffs, but, of course, the defendants may not complain of a ruling in their favor. In Arnold v. Krug, 279 Mich. 702, 273 N.W. 322, 324, a case cited by both plaintiffs and defendants, the rule is thus stated: '* * * he must keep such lookout ahead and to the sides and down intersecting highways as a reasonably prudent person would do in order to discover possible danger and must act carefully upon existing conditions.' Schall v. Penn Transit Co., 352 Pa. 129, 42 A.2d 278, 279, is to the same effect: 'Therefore the operator of a vehicle on a through highway may not, notwithstanding his superior right of way, rely blindly upon an assumption that the operator of a vehicle on an intersecting road or street will obey the law; he must be reasonably vigilant to observe traffic conditions on the intersecting highway * * *'. 5A Am.Jur., Automobiles and Highway Traffic, Sec. 323, page 429, says: 'The driver on the favored highway does not have the absolute right of way in the sense that he is not bound to exercise any care toward traffic on intersecting highways; he is bound to exercise ordinary care. While it is sometimes said that the right of way of a motorist on a street protected by stop signs is a 'permissive,' 'relative', or 'qualified' right and not an 'absolute' one, it is generally recognized that this does not relieve the motorist on the favored highway from the duty of exercising due care.'

Defendants' disagreement with the trial court is in the application of the foregoing principles rather than in the rules themselves. They cite Greenfeld v. Hook, 177 Md. 116, 8 A.2d 888, 136 A.L.R. 1485, in support of their contention that a driver on a favored highway need not slow at every intersection, but may drive at a lawful rate of speed, secure in the knowledge that he has the right of way and that an 'inhibited' traveler must know that he violates the duty of stopping and yielding the right of way at his own peril. They also cite Breker v. Rosema, 301 Mich. 685, 4 N.W.2d 57, 141 A.L.R. 867, to the same effect. It is interesting to note, however, that in the latter case the Michigan Supreme Court was concerned with the claim that the driver of the car on the protected road was guilty of contributory negligence as a matter of law. The Michigan court said (at page 59 of 4 N.W.2d): 'Assuming that the driver saw what was plainly to be seen, it at least becomes a jury question whether he, as a reasonable man, would not expect the car on the inferior road to observe the law and stop under the circumstances.' In Krause v. Ryan, 344 Mich. 428, 74 N.W.2d 20, the plaintiff was the favored driver. She reduced her speed as she approached an intersection from 50 to 30 miles per hour. Sh...