Pinckney v. Watkinson

• Decision Date: 24 July 1962
• Docket Number: No. 50583,50583
• Parties: Leonard W. PINCKNEY, Appellant, v. Harley WATKINSON and Harley Lee Watkinson, Appellees.
• Court: Iowa Supreme Court

Page 258

116 N.W.2d 258

254 Iowa 144

Leonard W. PINCKNEY, Appellant, v. Harley WATKINSON and Harley Lee Watkinson, Appellees.

No. 50583.

Supreme Court of Iowa.

July 24, 1962.

Rehearing Denied Sept. 18, 1962.

John D. Randall, and John D. Randall, Jr., Cedar Rapids, for appellant.

James W. Crawford, and William R. Eads, Cedar Rapids, for appellees.

LARSON, Justice.

This action for damages followed a rear-end collision between plaintiff's Buick automobile, stopped to pick up two boys on old Highway 30 about three miles east of Cedar Rapids, Iowa, and a Studebaker sedan owned by one defendant and operated by his 16 year old son, the other defendant. The jury returned a verdict for defendants. Plaintiff's motion for a new trial was overruled and he appealed. For convenience, we shall refer to the son hereinafter as defendant.

Appellees' motion to strike appellant's brief and argument for failure to comply with Rule 344(4), R.C.P., 58 I.C.A., and for resubmission thereof was ordered submitted with the case, and might well have been sustained. It is difficult to determine whether the alleged errors are as to the law or as to the sufficiency and competency of the evidence to justify certain court instruction. However, we have made an effort to determine the alleged errors as argued by the parties and, in order to expedite the appeal, overrule appellee's motion.

While we find little merit in the alleged errors, we do agree with appellant that the trial of a lawsuit is an attempt to arrive at a just conclusion of a controversy, and that it is the duty of the trial court to see that the jury is guided in the law so that the facts as determined by them may be properly applied. Appellees contend that was done here, and we agree.

Appellant, as we understand, contends that the trial court erred in giving three instructions to the jury which, although not erroneous themselves, were upon matters which had little if any factual support in the evidence, that they tended to mislead the jury and so-overemphasized defendant's theory of the case that they were prejudicial to him, that by admitting evidence obtained by one who worked with a patrolman while he was making an official investigation, prejudicial error arose which materially affected his rights, and that if any one of the alleged errors was not alone reversible, the aggregate furnished a compelling reason for granting a new trial in the interest of justice.

I. Timely objections had been made, and exceptions were taken to Instruction No. 3 upon unavoidable accident, to Instruction No. 12 on sudden emergency, and to Instruction No. 13 on an operator's duty to stop off the traveled portion of the highway under the provisions of Section 321.354, Code 1958, I.C.A. While it may be conceded the submission of instructions upon matters which have no factual support in the evidence, or which clearly overemphasize one or the other theory of the case would be error, a careful examination of this record fails to sustain such a contention. The problems presented require a review of the evidence and the requirements of Section 321.354 and Section 321.271 of the Code 1958, I.C.A.

We find the record would support a factual determination that plaintiff entered old Highway 30 some quarter of a mile or more east of the scene of this accident, that he proceeded west at about 50 or 55 miles per hour over a knoll of a hill, then into a shallow depression, but deep enough to create a blind spot in the roadway ahead, then over another knoll some 150 feet from a 20 foot driveway leading into the Willard Sales and Service Shop on the right side of the highway.

On this morning, as he topped the first knoll some three to five blocks east of this drive, he noticed a car parked along the roadside near the drive and some boys nearby. As he came over the nearest knoll he recognized the boys as neighbors, applied his brakes, and came to a stop near the center of the Willard Shop driveway. There is some dispute as to whether plaintiff stopped his car entirely off the blacktopped pavement or stopped with some five feet of it still in the right travel lane. One witness thought it was two or two and one half feet on the paving. However, we are satisfied, as was the trial court, that the evidence was sufficient to justify a finding by the jury that plaintiff stopped in such a position as to substantially block the westbound or north lane of travel and did not yield all or at least 20 feet of the traveled portion to other vehicular traffic as required, when he came to a stop 40 seconds before the collision. It took him that much time to rearrange books and packages and unlock the right front door so the boys could get in the front seat with him.

There is evidence that about this time the defendant's automobile came over the knoll farthest east at a speed of about 65 miles per hour, that its operator saw plaintiff's automobile in the vicinity of that driveway for only a moment, then lost it from view until he came over the nearest knoll some 150 feet away. No signal was visible and he did not know it was not moving. His speed had not been reduced and, when he realized for the first time that plaintiff's car was stationary and partially blocking his lane of travel, he said he "dodged out" to pass and then discovered a car approaching from the opposite direction about the same distance from the plaintiff's vehicle. That this was an emergency could not be doubted. Fearing he could not make the pass, young Watkinson pulled back into his own lane, applied his brakes and slid into plaintiff's automobile with such force it injured plaintiff and seriously damaged both vehicles. There was also some evidence a car approaching from the west could not be seen for a brief period by a westbound driver due to the blind spot created by the near knoll. Thus we have the question of whether the evidence was sufficient to justify the submission of a sudden emergency instruction.

This accident happened shortly after 8 A.M. on December 30, 1959. It was a clear day, and the blacktopped pavement 18 feet 3 inches wide was clear and dry. There was no driver visibility obstruction in either automobile, and no evidence of faulty equipment. In defendant's car were two passengers. One lad sitting on the right of the driver was asleep, and the other seated next to the door was reading a magazine. Plaintiff was alone at the time of the collision. There were two other eye-witnesses, occupants of the eastbound car, who testified for defendant.

The accident was investigated by a state highway patrolman and by a commercial photographer who was called by the patrolman but was not associated with him officially. The morning was cool and the photographer was present in the warm car when the patrolman talked with the boys whose pictures appear in plaintiff's Exhibit "C". He denied he paid any attention to that conversation and did not obtain the information used in posing the boys when he took the photograph Exhibit "C". This situation gave rise to plaintiff's contention here that the evidence obtained by the witness was confidential under Section 321.271 of the Code, I.C.A.

II. In Instruction No. 5, to which no objection was made, the court properly told the jury that in order to recover, plaintiff must prove by a preponderance of the evidence that the defendant Harley Lee Watkinson was negligent in one or more of the particulars charged in his petition, which included excessive speed, failure to keep a proper lookout, and failure to have his automobile under control, that said negligence was the proximate cause of plaintiff's damages, that plaintiff was free from contributory negligence, and that he sustained some damages.

Plaintiff contends that, due to defendant's admitted violation of the speed permitted in that zone, and to certain other evidence tending to show a failure to keep a proper lookout and control, negligence was established, which made both instruction No. 3 and Instruction No. 12 inapplicable. Thus a most vital issue appears to be whether the evidence was such as to justify the jury in a finding that defendant's speed was not a proximate cause of the collision and that his lookout and control were proper under the circumstances.

III. Instruction No. 3 as given by the court stated: "The mere fact that an accident happened at the time and place charged in the pleadings does not establish nor does it raise a presumption that the defendant was negligent. Before the plaintiff can recover against defendants upon his petition, the negligence of the defendants must be proven by the evidence." This is a stock instruction and quite proper in such tort cases. No serious objection to it alone appears, but plaintiff contends that, when read with Instruction No. 12 on sudden emergency and No. 13 on prohibited stopping, it was misleading and overemphasized defendant's theory of the case. He contends defendant's admission that he was driving at about 65 miles per hour as he approached the accident scene, and that a speed limit of 60 miles per hour was posted in that vicinity, made defendant negligent per se and that fact should have been included in the instruction. No such request was made, and we find nothing more in this instruction than the requirement that plaintiff must, among other things, prove defendant's negligence before recovery can be had. It does not attempt to say recovery can be had if negligence appears, regardless of the other facts or circumstances. Indeed, to do so would be error, for regardless of such negligence, recovery could not follow unless it was also shown to have a causal connection with this injury.

IV. Instruction No. 12 stated: "When a person driving a motor vehicle is confronted by a sudden emergency not of his own making, and is, therefore, required to act upon the impulse of the moment, he is not held to the same accuracy of judgment as would be required of him if he had time for...