Peckinpaugh v. Engelke
| Decision Date | 04 April 1933 |
| Docket Number | No. 41784.,41784. |
| Citation | 215 Iowa 1248,247 N.W. 822 |
| Parties | PECKINPAUGH v. ENGELKE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Monona County; Robert H. Munger, Judge.
Action for personal injuries and property damages caused by plaintiff's automobile colliding with rear end of an unlighted truck owned by defendant, which was standing on paved highway. Verdict and judgment for plaintiff, and defendant appeals.
Reversed.
Gill & Gill, of Sioux City, for appellant.
Stewart & Hatfield, of Sioux City, and Prichard & Prichard, of Onawa, for appellee.
Primary highway No. 141 is a regularly established and paved highway running from Denison, Iowa, to Sioux City, Iowa. About 6 o'clock in the evening of December 9, 1930, plaintiff, Peckinpaugh, was riding in his automobile and going northwesterly on said paved highway from the town of Smithland toward his home. Plaintiff's automobile was being driven by his nephew, Vernon Kirkpatrick, a boy then 13 years of age. At a point approximately three miles north and west of Smithland, said highway curves toward the west. When plaintiff's automobile reached a point about the west end of such curve, or a short distance west therefrom, it collided with the rear end of a stock truck owned by the defendant which was standing unlighted on the road, and as a result of this collision plaintiff's automobile was damaged and he received personal injuries for which he sues.
In his amended and substituted petition plaintiff alleges that the defendant was negligent in failing to have said truck equipped with a red light or any light whatsoever so constructed, placed, and lighted so as to be visible to persons approaching the rear of said truck, that the defendant and the driver of his truck left said truck standing upon the paved portion of the highway at a time more than one-half hour after sunset without having any light upon the rear of said truck, and that the defendant and the driver of said truck wrongfully obstructed the said highway by permitting said truck to stand on the paved portion of the highway at a time when it was dark. Defendant denied the allegations of plaintiff's petition, and alleged that the accident was caused by the contributory negligence of plaintiff and Vernon Kirkpatrick, the driver of his automobile.
The case was tried to a jury. At the close of all the evidence, defendant moved the court for a directed verdict, which motion was overruled. After arguments had been completed, and, before the court had delivered his charge to the jury, plaintiff, by leave of court and over the objections of the defendant, was allowed to file an amendment to his amended and substituted petition, by adding to the grounds of negligence set out therein the allegation that the defendant and the driver of defendant's truck were careless and neglected, after defendant's car had failed to move or be propelled by its own power, to erect any barrier or to signal approaching cars and especially the car of the plaintiff. The cause was thereupon submitted to the jury, which returned a verdict in favor of the plaintiff for $2,500, and judgment was entered thereon. Defendant filed a motion for new trial and exceptions to instructions, which were overruled by the court. Appeal was thereupon taken to this court from the judgment on the verdict of the jury, from all rulings and orders of the court entered in the trial of the case, and from the order of the court overruling defendant's motion for new trial and exceptions to instructions.
The appellant sets out several alleged errors upon which it relies for reversal. The most important of these allegations of error are that the evidence was not sufficient to show any negligence on the part of the defendant or the driver of his truck, and that the plaintiff and the driver of his automobile were guilty of contributory negligence.
[1] I. Appellant contends that there is not sufficient evidence of negligence on the part of the driver of his truck to support the verdict against him. In order to dispose of this contention, it is necessary to briefly examine the evidence on this point. The driver of the truck was a witness, and testified that up to just a few moments before the accident his truck had been going along very nicely; that suddenly the lights went out and the engine ceased to operate; that he coasted over toward the right-hand side of the pavement and off on the shoulder of the road as far as he could go without going into the ditch; that, when his truck came to a stop he tried his starter and found that it did not work; that he immediately got out of the truck and went back to the rear to try to warn cars approaching from that direction; that he had reached a point about 6 feet back of the truck as the appellee's car approached; and that he waved his hand, but that the driver of appellee's car either did not see him or did not pay any attention to him. Appellant contends that all of these matters are uncontradicted, and that there is therefore no evidence to support a charge of negligence on the part of the driver of his truck. We believe that appellant's contention is true, with the exception that there is evidence in the record to contradict the claim of the driver as to the position of his truck with reference to the edge of the pavement and the ditch along the right-hand side of the road. The witness, Vernon Kirkpatrick, who was the driver of appellee's automobile, testified that the left hind wheel of the truck was on about the black mark in the center of the paving, and the right front wheel was on the right edge of the paving. Appellee's witness Dial testified that both rear wheels of the truck were on the pavement, and the left rear corner of the box was right about over the center of the pavement There was therefore a sharp conflict in the evidence as to the position of the truck, and, as far as the position of the truck was a matter to be considered in determining the negligence of the driver thereof, it was a question for the jury.
[2] Is the evidence such, however, that the driver of the truck, even though he did not get as far to the right on the shoulder of the road as it was possible for him to go, was nevertheless not guilty of negligence, because of the conditions amounting to an emergency with which he was suddenly confronted? The evidence is undisputed that at the place where the accident occurred there is a dirt shoulder on the right side of the pavement about 4 feet wide, and that at the time of the accident this dirt shoulder was hard. If, when the lights went out on the truck, the driver found himself in total darkness, with no knowledge as to the width or condition of the shoulder of the road, we would have a situation in which it might be very reasonably argued that there was no negligence on his part in stopping his car in the position in which the evidence of appellee's witnesses indicated it was at the time of the accident. The driver of the truck, however, stated that he could see about 300 feet around the corner to the left as he approached the curve prior to the accident; that when the lights went out and his truck became disabled he slackened it up and let it coast off to the side as far as he dared to let it run; that, when the truck stopped, the right-hand wheels were clean off the pavement on the shoulder at the edge of the pavement and the left rear wheel was right on the side of the curb of the pavement; that he could not go off any farther because the truck stopped; that he could not push it; that there was a ditch to the right, and the right-hand wheels of the truck were on the edge of this ditch; that it was just getting dusk, and he could just see to coast off the pavement after the lights went out; that it was light enough so that he could observe houses or objects to the side of the road. This testimony of the driver of the truck would seem to indicate that, without the help of his lights, he could see the width of the shoulder of the road and the ditch adjoining it. It seems to indicate that there was sufficient visibility so that he claims to have coasted off on the shoulder and to the very edge of the ditch. If, however, the visibility was such that he could, after his lights went out, see the width of the shoulder on the road and the ditch adjoining it, the question arises as to whether it was his duty to drive the truck farther off of the pavement and onto the shoulder to the right thereof. Of course, he claims that this is what he did, but the evidence of the appellee's witnesses is to the contrary. In view of the undisputed evidence as to the width and condition of the dirt shoulder, the evidence of the driver of the truck as to the visibility after his lights went out, and the evidence of appellee's witnesses as to the position of the truck at the time of the accident, it is our opinion that it was within the province of the jury to decide whether the driver of the truck was negligent in not...
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