Peterschmidt v. Menke

• Decision Date: 09 April 1958
• Docket Number: No. 49377,49377
• Citation: 89 N.W.2d 152,249 Iowa 859
• Parties: Frank PETERSCHMIDT, Appellant, v. Carl MENKE and Coletta Menke, Appellees.
• Court: Iowa Supreme Court

Page 152

89 N.W.2d 152

249 Iowa 859

Frank PETERSCHMIDT, Appellant, v. Carl MENKE and Coletta Menke, Appellees.

No. 49377.

Supreme Court of Iowa.

April 9, 1958.

Napier & Fehseke, Fort Madison, for appellant.

Pollard, Lawse & Deitchler, Fort Madison, and Wilbur R. Dull, Ottumwa, for appellees.

PETERSON, Chief Justice.

This is the second appeal in this case. The first decision appears in 246 Iowa 722, 69 N.W.2d 65. It is an intersection collision case. The statement of facts, as to the collision and surrounding circumstances, appears in detail in our former opinion. We will not repeat the full statement. We will only show such of the facts as are pertinent to the new situation which has arisen in connection with this appeal.

At the first trial of the case Menke sued Peterschmidt for damages to his car. Peterschmidt filed counterclaim for damages to his pickup truck, but primarily for serious personal injuries suffered by him in the collision.

When Peterschmidt first filed his counterclaim he alleged in Count I specific charges of negligence against Mrs. Menke, the driver of the car, and Mr. Menke as owner, and alleged freedom from contributory negligence. In Count II he alleged he was entitled to the benefit of doctrine of last clear chance. At the close of all testimony the trial court withdrew Count I from the jury, but submitted the case under the allegations of Count II. The jury found in favor of Peterschmidt and Mr. and Mrs. Menke appealed. We reversed.

Before the second trial either Peterschmidt or his insurance company settled with Menke for the damages to his car. It was then agreed that the case should be tried the second time on the theory of Peterschmidt as plaintiff and Mr. and Mrs. Menke as defendants. Substantially the same evidence was offered in the second trial as in the first under the allegations of Count I of the petition as to specific negligence and freedom from contributory negligence. The doctrine of last clear chance did not enter into the second trial, in view of our previous decision. At the close of all testimony the court directed a verdict for defendants. Plaintiff has appealed.

Appellant alleges three assignments of error. 1. The trial court should have submitted to the jury the question of contributory negligence on the part of plaintiff. 2. The trial court should have submitted to the jury the question as to whether or not Mrs. Menke was guilty of negligence. 3. The trial court erred in excluding evidence as to damage to defendants' truck, and in refusing to admit a statement given by Mr. Menke as to the insurance company shortly after the collision.

I. To properly consider the ruling of the trial court in directing a verdict for defendants, a statement of part of the evidence offered in the second trial is necessary. Plaintiff was driving west on a gravel road. Defendant, Mrs. Menke, was driving south, also on a gravel road, in a car owned by Carl Menke, her husband.

Plaintiff testified: 'The width of the traveled portion of both the east and west and north and south roads at this intersection at the time of the collision was 24 feet. The width of the entire right-of-way of both roads, including the shoulders, ditches, and traveled portion was 66 feet. * * * I was traveling, I imagine, between 15 and 20 miles an hour. * * * I was proceeding west and I first looked to my right when I was about 60 feet east of the intersection. I continued to look to my right until I could look to my left, at which point I was approximately 20 feet east of the intersection. * * * I stopped looking to the north when I was 20 feet east of the intersection. From that point at the last time I looked to the north I had clear vision and could see the north and south road approximately 500 feet north of the intersection. At that point I saw no car approaching from the north. From that point, 20 feet east of the intersection, I looked to my left, to the south, to see if there was any cars coming from that way. I saw no cars coming or approaching from the south. I then drove on through the intersection. Q. Now, I will ask you to state whether, as you proceeded to the west, there was a collision between your truck and the car of Coletta Menke? A. After I was through the intersection. * * * My look to the north was at a point commencing about 60 feet east of this fence (the fence on east side of the north and south road) that I was talking about up to about 20 feet. * * * I slowed down before I entered the intersection but didn't stop and I don't think I was going as fast as 20 miles an hour. Yesterday I said 15 * * * that is the speed I was going the last time I remember.'

Mrs. Menke testified: 'I approached this intersection at about 40 miles per hour; and as I got about 150 feet from the intersection, I looked to the east and I didn't see anyone. I also looked to the right and then looked back to the left or east again, and then I saw Peterschmidt's pickup truck. I took my foot off the accelerator. I first thought that he had seen me and would stop. I was about 75 feet from the center of the intersection when I first saw this truck. * * * The truck was coming from my left. I was on his right. * * * The truck came straight on through the intersection. I judge his speed as about 20 mph. The Peterschmidt truck entered the intersection without reducing his speed. When I saw that the Peterschmidt truck was not going to stop, I immediately slammed on my brakes and turned my car to the right to try to avoid an accident. I turned my car to the right about the same time as I applied my brakes. The truck came straight on through the intersection. The left front of my car collided with the right front of the Peterschmidt truck. * * * I saw Peterschmidt about a week later and he said he just didn't see me and he didn't know where I came from.'

We have stated many times, and the rule is too well settled to need either discussion or extensive citations, that the evidence must be given the most favorable interpretation for the plaintiff it will reasonably bear. Odegard v. Gregerson, 234 Iowa 325, 12 N.W.2d 559; Comfort v. Continental Casualty Co., 239 Iowa 1206, 1208, 34 N.W.2d 588, 589; Jacobson v. Aldrich, 246 Iowa 1160, 69 N.W.2d 733, 735.

II. The first basis of the court's ruling in directing a verdict was contributory negligence of plaintiff as a matter of law. It is well settled that plaintiff has the burden of making an affirmative showing of his freedom from contributory negligence. Sanderson v. Chicago, M. & St. P. R. Co., 167 Iowa 90, 149 N.W. 188; In re Estate of Hill, 202 Iowa 1038, 208 N.W. 334, 210 N.W. 241; Nurnburg v. Joyce, 232 Iowa 1244, 7 N.W.2d 786; Jacobson v. Aldrich, supra. In the last cited case this court stated [246 Iowa 1160, 68 N.W.2d 735]: 'There is also the principle, equally well settled in Iowa law, that the burden is upon the plaintiff to make an affirmative showing of his freedom from negligenc which in any way contributed to his damage and injuries.'

The question of contributory negligence is ordinarily for the jury. In the Jacobson case we said: 'Another rule often repeated is that ordinarily the question of contributory negligence is for the jury; it is only in 'very exceptional cases' that a verdict may be directed because contributory negligence appears as a matter of law. Fitter v. Iowa Telephone Co., 143 Iowa 689, 693, 121 N.W. 48, 50; Thompson v. Waterloo, Cedar Falls & Northern Railroad Co., 243 Iowa 73, 78, 79, 50 N.W.2d 363, 365, 366; Lawson v. Fordyce, 234 Iowa 632, 641, 12 N.W.2d 301, 306; and cases cited therein.' The case at bar falls within the category of a ...