Pitz v. Cedar Val. Egg & Poultry Co.

• Decision Date: 17 January 1973
• Docket Number: No. 55085,55085
• Citation: 203 N.W.2d 548
• Court: Iowa Supreme Court
• Parties: Harold William PITZ, Appellant, v. CEDAR VALLEY EGG & POULTRY COMPANY, and Alfred A. Timmerman, Appellees, Ralph O. Norman, Intervenor.

Page 548

203 N.W.2d 548

Harold William PITZ, Appellant, v. CEDAR VALLEY EGG & POULTRY COMPANY, and Alfred A. Timmerman, Appellees Ralph O. Norman, Intervenor.

No. 55085.

Supreme Court of Iowa.

Jan. 17, 1973.

Nolan, Lucas & Nolan, by John T. Nolan and Michael Bradley, Iowa City, for appellant.

Cahill, Lovelace, Poula & Wimpey, by Jerry L. Lovelace, Iowa City, for appellees.

Joseph Johnston, Iowa City, for intervenor.

Heard before MOORE, C.J., and MASON, RAWLINGS, REES, and HARRIS, JJ.

RAWLINGS, Justice.

Law action for damages, tried to the court, resulted in judgment for intervenor against plaintiff and defendants. Plaintiff alone appeals. We affirm.

The instant accident occurred about 9:30 p.m. June 16, 1969, at or near the T intersection of Highways 218 and 6 in Johnson County. The night was clear, pavement dry and intersection well-lighted.

Highway 6 is a favored or through eastwest four lane road. There was a stop sign at the north-west corner of the intersection governing southbound traffic emerging from #218.

Plaintiff, Harold William Pitz (Pitz) was operating his automobile in a westerly direction on #6. Alfred A. Timmerman (Timmerman), employed by Cedar Valley Egg & Poultry Company (Cedar Valley), defendants, was operating an employer owned semi-trailer truck south on #218. Timmerman brought his rig to a stop in obedience to the aforesaid sign. Ralph O. Norman (Norman), intervenor, also headed south on #218, stopped behind Timmerman.

Pitz testified he was traveling about 55 miles per hour and when 300 to 500 feet from the intersection saw the Timmerman operated outfit. Testimony by the latter is to the effect he saw the Pitz car approaching when it was approximately 300 feet away, thought there was time to cross #6, emerged from #218 and turned east. Pitz opined he was only 150 feet from the intersection when Timmerman pulled into the favored road and made a left turn. In any event, as Timmerman moved out onto #6 Norman pulled ahead and stopped in obedience to the sign, where he remained.

About the same time Pitz hit his brakes but lost control of the car which served to the right, jumped an island curb, then struck and damaged Norman's motionless vehicle. The latter was of the belief Pitz approached the intersection somewhat in excess of the 65 miles an hour speed limit.

Trial court found Pitz was negligent in (1) failing to keep a proper lookout, (2) failing to have his vehicle under control, and (3) failing to reduce his speed when appraching and traversing an intersection and such was a proximate cause of the accident.

Plaintiff here contends trial court erred in finding any negligence on his part which, concurrently with that of defendant Timmerman, was a proximate cause of the damage to intervenor Norman's truck.

As aforesaid, plaintiff alone appeals. We confine ourselves accordingly.

I. Our review is on errors assigned, not de novo.

As stated in Farmers Butter & Dairy Coop. v. Farm Bur. Mut. Ins. Co., 196 N.W.2d 533, 535 (Iowa 1972):

"Findings of fact by trial court have the effect of a jury verdict. Furthermore the record will be viewed in that light most favorable to the judgment, and if supported by substantial evidence it will not be disturbed on appeal. This does not, however, exclude inquiry as to whether trial court erred in the admission of evidence or application of erroneous rules of law which materially affected the decision. Rule 344(a)(3), R.C.P.; Christensen v. Miller, Iowa, 160 N.W.2d 509, 511; Hamilton v. Wosepka, (261) Iowa (299), 154 N.W.2d 164, 166; Morris Plan Leasing Co. v. Bingham Feed and Grain Co., 259 Iowa 404, 413, 143 N.W.2d 404; and McCune v. Muenich, 255 Iowa 755, 757, 124 N.W.2d 130.' See Iowa R.Civ.P. 334.'

See also Iowa R.Civ.P. 344(f)(1).

II. Significantly, Pitz does not nor could he effectively contend Norman was in any manner contributorily negligent.

It is evident The Code 1966, Sections 321.285 and 321.288 here come into play. With that in mind we turn to Wilson v. Jefferson Transportation Co., 163 N.W.2d 367, 371 (Iowa 1968), where this court held:

'The section 321.288 statutory duty to reduce speed at intersections is in addition to the general rule set forth in section 321.285 that all motorists must drive at a reasonable and proper rate under the circumstances then existing. * * * The additional duty to slow down at intersections is ordinarily not applicable to motorists on through highways where intersecting traffic has the duty to stop and yield. The general considerations are stated in Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47, 51--52:

"The true rule is that the statutory right of way is not a guarantee of safety, but that the driver on the protected road must use reasonable care under the existing circumstances for his own safety and that...