Peters v. Rieck

• Decision Date: 17 November 1964
• Docket Number: No. 51270,51270
• Parties: Martha PETERS, Appellant, v. Arthur RIECK and Bernard Buhr, Appellees.
• Court: Iowa Supreme Court

Page 529

131 N.W.2d 529

257 Iowa 12

Martha PETERS, Appellant, v. Arthur RIECK and Bernard Buhr, Appellees.

No. 51270.

Supreme Court of Iowa.

Nov. 17, 1964.

Pappas & Senneff, Mason City, for appellant.

Engelbrecht & Ackerman, Waverly, for appellees.

MOORE, Justice.

Plaintiff appeals from a judgment on verdict for defendants in an action to recover for personal injuries sustained when the car in which she was riding, while stopped at a stop sign, was struck in the rear by a pickup truck owned by defendant Bernard Buhr and driven by his employee Arthur Rieck.

Plaintiff asserts the trial court erred in (1) submitting to the jury the issue of legal excuse because of sudden brake failure and (2) failing to properly instruct that defendants had the burden of proving their pleaded defense of legal excuse.

With the exception of whether Rieck made certain admissions about the condition of the brakes prior to the accident the facts material to the issues here presented are virtually free from dispute.

At about 12:30 p. m., January 23, 1962 plaintiff, Martha Peters, was riding in a Mercury automobile being driven by her husband going north on Highway 63 approaching the intersection of Highway 3 in Bremer County. Behind the automobile defendant Arthur Rieck was driving the Ford pickup truck of his employer, defendant Bernard Buhr. Buhr does not deny liability if Rieck is liable. For brevity and clarity we will therefore refer to Rieck as defendant.

Highways 63 and 3 are both paved. At the intersection are wing curves. The Mercury coming from the south went into the right wing curve and stopped by the stop sign before making the intended turn to the east on 3. While stopped it was struck from the rear by defendant's pickup, resulting in damage to the rear bumper and right rear taillight. Plaintiff testified the first blow was 'real real hard' and the Mercury was struck twice after that. Plaintiff was thrown back and then forward by the jolt. Her injury was described as 'a whiplash of the cervical spine'.

Plaintiff testified Rieck at the scene stated he had driven around Waterloo that morning without a pound of brakes. Rieck denied making such a statement and said he had not been in Waterloo. He testified after the accident he immediately said the brakes had suddenly failed.

Mr. Peters testified he observed the pickup truck in the rear view mirror immediately before the collision, about 50 feet from the stop sign and there was nothing to indicate it would not stop.

Rieck testified he had driven the pickup for several weeks prior to the accident, at all times prior to the last few feet traveled before the accident there was always positive response to the brake pedal when it was pressed down, he had no previous difficulty with the brakes, he drove the pickup to Cedar Falls that morning to get a farm machine part, made at least eight normal stops on the way and three more such stops on his return trip, as he approached the intersection he saw the Mercury stopped at the stop sign, he applied the foot brakes, slowed down to between 5 and 10 miles per hour but when he pressed down harder on the pedal to stop behind the Mercury he then heard a pop and the brake pedal instantly hit the floor board. Defendant stated he was about 15 to 20 feet from the rear of the Mercury when the brakes suddenly failed, the hand or emergency brake was working but he didn't have time to use it or do anything between the failure of the brakes and the impact.

Mrs. Rieck testified she had driven the pickup the day before the accident and experienced no difficulty with the brakes. Starr, another employee of Buhr, stated he had driven the pickup a short time before Rieck took it to go to Cedar Falls and the brakes were in good working condition.

Lester LaLone, a mechanic of many years experience, qualified as an expert witness and testified he inspected and repaired the hydraulic brake system of defendant's pickup truck. He stated: 'The left front wheel line, a hydraulic hose, had burst losing all of the hydraulic fluid, thus causing a complete brake failure. The bursting would be like a ballon, intertube, or anything like that and the brake pedal would go clear to the floor board. The bursting would be instantaneous and is caused by flexing and turning and the application of the brake. The line is flexible and goes from the frame of the vehicle to the backing plate of the wheel. If there is a weakness in the hose you may have perfect brakes one minute and the next minute you stop, you will have no brakes at all. When a hydraulic line breaks, there is nothing you can do or no way you can feel that it is going to happen, it just happens. He personally installed a new hydraulic brake line and replaced the hydraulic fluid, and that he then test drove the pickup truck and the brakes worked properly. At the time he received the pickup truck for repair it had no foot brakes at all.'

I. Section 321.430, Code 1962, I.C.A., requires every motor vehicle operated upon a highway be equipped with brakes adequate to control the movement of and stop and hold the vehicle. It also requires two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels.

Section 321.431 requires all brakes be maintained in good working order and be so adjusted as to operate as equally as practicable with respect to the wheels on opposite sides of the vehicle.

The trial court submitted two specifications of negligence, inadequate brakes and lack of control and quoted the applicable law. In Instruction 7 the court states: 'You are instructed that the failure of the defendants or either of them to obey the foregoing rules of law stated and explained to you in this instruction is undisputed in this case, and that such failure constitutes negligence on the part of the defendants in the operation of said motor vehicle unless you shall find them to be entitled to the defense of legal excuse as will be more fully explained to you in the following instructions.'

Beginning with Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552, we have consistently held that where the statute has fixed the standard of care the failure to observe such standard (with one exception not here applicable) is negligence in the absence of legal excuse.

In Kisling v. Thierman, supra, we say: 'By the term 'legal excuse' is meant: '1. Anything that would make it impossible to comply with the statute or ordinance.

'2. Anything over which the driver has no control which places his car in a position contrary to the provisions of the statute or ordinance.

'3. Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.

'4. Where a statute specifically provides an excuse or exception.' Loc. cit., page 916, 214 Iowa, page 554, 243 N.W. See also Florke v. Peterson, 245 Iowa 1031, 1034, 65 N.W.2d 372, 373; Wachter v. McCuen, 250 Iowa 820, 826, 96 N.W.2d 597, 600; 8 Drake Law Review, pages 110 to 127, Effect of Statutory Violations in Automobile Negligence Actions in Iowa.

Plaintiff argues the court erred in submitting legal excuse under the first and third definitions. She contends the statutory brake requirements are absolute and that negligence for failure to comply at all times is not subject to proof of legal excuse. We do not agree.

In 8 Am.Jur.2d, Automobiles and Highway Traffic, section 702, it is stated:

'Where the violation of a statute containing specific requirements as to brakes is established, most authorities support the view that such violation constitutes negligence per se. However, in some jurisdictions it is held that the failure to comply with such regulations may be excused, the courts stating that the violation of a statute relating to brakes, if without legal excuse, constitutes negligence per se. Under such a view, where the motorist has done all that can be reasonably expected of a person of ordinary prudence to see that his vehicle is in proper condition, and an unforeseen failure of the brakes occurs, he is not usually held guilty of negligence as a matter of law.'

In 60 C.J.S. Motor Vehicles § 261, in regard to statutory brake requirements it is said: 'In order to excuse noncompliance with such statutory requirements, defendan...