Pierce v. Dencker

• Decision Date: 19 November 1940
• Docket Number: 45334.
• Citation: 294 N.W. 781,229 Iowa 479
• Parties: PIERCE v. DENCKER et al.
• Court: Iowa Supreme Court

294 N.W. 781

229 Iowa 479

PIERCE v. DENCKER et al.

No. 45334.

Supreme Court of Iowa.

November 19, 1940

Appeal from District Court, Webster County; O. J. Henderson, Judge.

Action for damages for personal injury and property damage due to alleged negligence of defendants in an automobile collision and plea on part of defendants of general denial and counterclaim for damage done to defendants' automobile. Verdict for plaintiff, and defendants appeal.

Affirmed.

James I. Dolliver, of Fort Dodge, for appellants.

Thomas M. Healy, of Fort Dodge, for appellee.

HALE Justice.

The collision of the two cars involved occurred on May 26, 1939 about 5:15 p. m. The plaintiff was driving his Chevrolet coupe south on 12th Street in Fort Dodge near its intersection with 3d Avenue South, extending east of 12th Street. At the same time the defendant Robert Dencker was driving north on 12th Street in a Buick sedan owned by his mother, the defendant Mrs. Rudolph Dencker, and driven with her consent. Plaintiff's evidence was to the effect that as he reached the intersection he observed a car traveling north (not the Dencker car) about 100 feet south of the intersection, that plaintiff drove on the west or right side of 12th Street until even with the center of 3d Avenue South and then over onto 3d Avenue, south of the center line. Defendants' car passed around the northbound car on the east side of 12th Street and was traveling at a speed variously estimated at 25 up to 40 miles per hour. Plaintiff in making the turn was traveling at about 10 miles per hour and attempted to accelerate when he observed the close proximity of the Dencker car. The cars came into collision at the corner, resulting in damage to both cars and injury to the plaintiff. The evidence indicated that defendant Robert Dencker was exceeding the limit of 25 miles per hour fixed by ordinance for that locality, a residential district. The jury returned a verdict for plaintiff. Exceptions to instructions and motion for new trial were overruled and defendants appeal.

Defendants claim error in the giving and in the refusing of instructions, in the court's refusal to direct verdict for defendants on the ground of plaintiff's contributory negligence, and in permitting evidence as to liability insurance to stand.

The defendants requested the following instruction: " If you find that the plaintiff in turning his automobile from 12th Street onto 3d Avenue South at the time of the alleged accident, failed to drive his car in that portion of the right-half of the roadway nearest the centerline of 12th Street and after entering the area beyond the curb line of 3d Avenue South, failed to depart from the intersection to the right of the center line of 3d Avenue South; then and in that case the plaintiff is guilty of contributory negligence as a matter of law and cannot recover in this case."

The court refused to give this instruction, but did give its own instruction No. 10, as follows:

" The defendants, in turn, attribute the accident to the negligence of the plaintiff, and are asking damages by way of counter claim against him for such negligence. The negligence they first charge against the plaintiff is that he failed to go beyond the center of the intersection before making a left hand turn.

On this point the statute merely provides that an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof, and after entering the intersection, the left turn shall be made so as to depart from the intersection to the right of the centerline of the roadway being entered.

This statute, as you will observe, did not require plaintiff necessarily to go around to the outside of the center point of the intersection. It merely required him when intending to turn to the left, to approach the intersection of that part of the right half of 12th Street nearest the centerline thereof, and when leaving the intersection, to do so on the right of the center line of 3d Avenue So. It is for the jury to say from the evidence before you whether or not plaintiff violated this statute in turning from 12th Street into 3d Avenue South, remembering that before defendants are entitled to recover on this charge, the burden of proof is on them to establish this claim; but if so established by a preponderance of the evidence, and in the absence of reasonable excuse therefor, the plaintiff would be guilty of negligence as thus claimed."

Defendants say that this is an interpretation not warranted by the context of this section. The instruction is based on the statute then in force, Section 340, Chapter 134, Acts of the 47th General Assembly (now section 5025.01, Code of 1939). This section, so far as applicable to the present situation provides: " Approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and after entering the intersection the left turn shall be made so as to depart from the intersection to the right of the center line of the roadway being entered."

The statute also provides that a different course may be specified by local authorities. This section, as it now stands, was changed to its present form by Chapter 134, Acts of the 47th General Assembly, and replacing Section 5033 Code of 1935, which read: " The operator of a motor vehicle, in turning to the right from one street or highway into another, shall turn the corner as near the right hand as practicable, and, in turning to the left from one street or highway into another, shall pass to the right of and beyond the...