Paulsen v. Mitchell

• Decision Date: 18 October 1960
• Docket Number: No. 50013,50013
• Parties: Gladys PAULSEN, Appellant, v. Lowell MITCHELL, Appellee.
• Court: Iowa Supreme Court

Page 603

105 N.W.2d 603

252 Iowa 65

Gladys PAULSEN, Appellant, v. Lowell MITCHELL, Appellee.

No. 50013.

Supreme Court of Iowa.

Oct. 18, 1960.

Jones, Cambridge & Carl, Atlantic, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee.

GARFIELD, Justice.

This is a law action for damages resulting from a motor vehicle accident in which plaintiff's Ford automobile and defendant's stock truck were involved. At the close of the evidence the court directed a verdict for defendant evidently on the ground of plaintiff's contributory negligence. From judgment thereon plaintiff has appealed.

The accident occurred on U. S. Highway 6 just southwest of Atlantic about 11:30 p.m. Plaintiff, age 41, was driving her Ford automobile northeast toward the city. Defendant, age 42, drove his stock truck onto the pavement from a 'truck stop' on the westerly side thereof, made a left turn in front of plaintiff and headed toward Atlantic. When plaintiff saw the truck across the highway ahead of her she pulled over to the right (east) dirt shoulder and succeeded in passing the truck after it had been straightened out for about 100 feet. Soon afterwards her car turned over twice in the loose dirt on the shoulder.

Authorities need not be cited for the familiar rule that in reviewing the evidence upon this appeal it is our duty to consider it in the light most favorable to plaintiff. It is equally well settled that the issue of freedom from contributory negligence is generally one of fact for the jury. Geisking v. Sheimo, 251 Iowa ----, 105 N.W.2d 599. Only where plaintiff's contributory negligence is so palpable that reasonable minds may fairly reach no other conclusion is the issue one of law for the court. Boegel v. Morse, 251 Iowa ----, 104 N.W.2d 826, and citations; Mueller v. Roben, 248 Iowa 699, 702-703, 82 N.W.2d 98, 100, and citations.

We have said many times that it is the settled rule in this state that if there is any evidence tending to establish plaintiff's freedom from contributory negligence, the question is one for the jury. Huffman v. King, 222 Iowa 150, 154, 268 N.W. 144, 147, and citations; Pierce v. Dencker, 229 Iowa 479, 484, 294 N.W. 781, 783; Clark v. Umbarger, 247 Iowa 938, 946, 75 N.W.2d 243, 247; Auen v. Kluver, 250 Iowa 619, 625, 95 N.W.2d 273, 276.

It may be well to observe now that defendant seeks to uphold the directed verdict by arguing plaintiff failed to show freedom from contributory negligence, or was contributorily negligent as a matter of law, in these four respects: lookout, speed and violation of the assured clear distance rule, passing the truck on the right, and control of her car.

The pavement had recently been widened to 24 feet by putting a 3-foot strip on each side of the old slab. The shoulder had not been completed, soft dirt was piled there and it was only about three feet wide. At the truck stop there was a filling station and, north of it, a restaurant. The drive into the truck stop was not far north of the restaurant. Opposite the restaurant was the entrance to a motel on the east side of the highway. North of the motel was a new addition with three driveways leading to it. Plaintiff's car overturned midway between the south driveway to the addition and the one north of it. There was quite a drop-off from the pavement onto the shoulder at this point. South of the south driveway into the addition was a very deep ravine caused by the natural flow of water.

It is about .3 mile from the drive into the motel to the crest of a hill to the south. There are many lights at the truct stop and the whole area around there was well lighted. Posted speed limited was 45 miles per hour. According to plaintiff she was not exceeding it. She says she had driven from Omaha that evening at 45 to 50 miles per hour and if she drove much over that speed her motor would heat.

Plaintiff testifies that when she was about 100 feet south of the driveway into the truck stop she first saw the truck coming out of the driveway. It was clear across the paving headed northeast at an angle. She had not seen headlights or other lights of the truck although she says she was watching ahead.

We quote plaintiff's testimony as to what then happened: 'When I saw that I hollered at Bob and pulled over to the shoulder and put on my brakes and got out in that loose dirt and it tended to throw me and I honked my horn and tried to stay out of that deep hole on the east side. I do not remember seeing the truck again. As I proceeded I put on my brakes and got two wheels in that loose dirt and I knew that big hole was there and I was trying to work with my car and keep it out of that hole. Somehow or other I think I got by the truck. I think he pulled over on the other side enough for me to get by and I kept working with my car to keep it from going in that deep hole and I kept using my brakes off and on and tried to get back on the highway and it sort of jerked me across the highway and I thought there might be another car coming so I tried to pull it the other way and it rolled over twice. At the time I saw this truck my speed was approximately 45 miles an hour.'

'Bot,' to whom plaintiff refers, was her brother-in-law who was riding with her and suffered fatal injury in the accident. The hole to which plaintiff refers is the deep ravine previously mentioned.

The above is a sufficient indication of the facts at this point. Other evidence will be referred to later.

I. On the question of lookout defendant argues plaintiff was contributorily negligent in not seeing the truck until she was about 100 feet from it, that either she did not look or, if she looked, did not see it when it was in plain view.

We have no statute requiring a motorist to keep a lookout. However, all motorists are under the common law duty to exercise ordinary care--the care of an ordinarily prudent person--under the circumstances, in the matter of maintaining a lookout. Hutchins v. LaBarre, 242 Iowa 515, 528, 47 N.W.2d 269, 276, and citations; Arenson v. Butterworth, 243 Iowa 880, 889, 54 N.W.2d 557, 562; Miller v. Stender, 251 Iowa --$, 98 N.W.2d 338, 342, and citations. See also Mueller v. Roben, supra, 248 Iowa 699, 705-706, 82 N.W.2d 98, 102, and citations; Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1011, 82 N.W.2d 82, 86.

In determining whether plaintiff was contributorily negligent as a matter of law in the matter of lookout an important consideration is the fact she was proceeding upon a through highway which defendant was entering and she had the right, unless she knew or should have known otherwise, to assume he or others entering the highway would comply with section 321.353, Code, 1958, I.C.A., which provides: 'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall stop such vehicle immediately prior to driving on said highway and shall yield the right of way to all vehicles approaching on said highway.'

It is clear plaintiff was approaching upon a through highway and it was defendant's duty to tield the right of way to her. Plaintiff was also approaching the truck from the right and ordinarily would be entitled to the directional right of way (Code section 321.319, I.C.A.) and to assume it would be accorded her.

It is perhaps true plaintiff did not see the truck start onto the highway as soon as she might have seen it. But we think she is not chargeable with contributory negligence as a matter of law in this respect. She was not bound to see it as the earliest possible moment. As stated, her duty was the exercise of ordinary care under the circumstances.

It is not surprising plaintiff did not see the lights of the truck if they were lighted. The headlights were headed east and northeast, away from her and the highway. They and the smaller lights on the truck may not have been clearly visible in the well lighted area of the truck stop.

We have said several times that a motorist who has the directional right of way is not contributorily negligent as a matter of law in failing to look to his left at all upon approaching an intersection, in view of the right of way to which he is entitled and his right to assume it will be accorded him. Roe v. Kurtz, 203 Iowa 906, 907-910, 210 N.W. 550; Hutchins v. LaBarre, supra, 242 Iowa 515, 533, 47 N.W.2d 269, 279-280; Perry v. Eblen, 250 Iowa 1338, 1348, 98 N.W.2d 832, 838; Kuehn v. Jenkins, 251 Iowa ----, 100 N.W.2d 610, 617. See also Arends v. DeBruyn, 217 Iowa 529, 252 N.W. 249. Roe v. Kurtz; Hutchins v. LaBarre, and Arends v. DeBruyn reverse judgments on a directed verdict against the claimant. Of course what has just been stated does not mean a motorist who does not look to his left is free from contributory negligence. It merely means it is a jury question. Perry v. Eblen, supra.

There seems to be fully as much reason as in the cited precedents for holding this plaintiff, who looked and saw the truck pulling onto the protected highway from her left 100 feet ahead of her, was not contributorily negligent as a matter of law in maintaining a lookout.

II. Code section 321.285, I.C.A., required plaintiff to drive at a careful and prudent speed not greater than was reasonable and proper, having due regard to existing conditions, and not greater than would permit her to stop within the assured clear distance ahead, she 'having the right to assume, however, that all persons using said highway will observe the law.' Speed in excess of 45 miles per hour was also unlawful. As stated, plaintiff testifies her speed did not exceed this 45-mile limit.

Defendant's claim of excess speed is largely based on testimony of a state patrolman who investigated the accident as to length of tire marks on the right (east) shoulder and the pavement. He says it was 576 feet from the place near the driveway to the motel where one track left the pavement north to where the car came to rest on its top, the right wheels were on the shoulder and...