Plummer v. Loonan

• Decision Date: 09 September 1971
• Docket Number: No. 54466,54466
• Parties: Mildred PLUMMER and William J. Plummer, Appellants, v. Steven R. LOONAN and Everett Loonan, Appellees.
• Court: Iowa Supreme Court

Page 617

189 N.W.2d 617

Mildred PLUMMER and William J. Plummer, Appellants, v. Steven R. LOONAN and Everett Loonan, Appellees.

No. 54466.

Supreme Court of Iowa.

Sept. 9, 1971.

Keith, Gallagher, Lybbert & Martin, Waterloo, for appellants.

Beecher, Buckmaster, Beecher, Holmes & Lindeman, Waterloo, for appellees.

LeGRAND, Justice.

This appeal arises out of an automobile accident which occurred on August 25, 1966. Plaintiff, Mildred Plummer, sued for personal injuries and her husband, William J. Plummer, asked compensation for loss of consortium and property damage to his Chevrolet Carryall truck, which his wife was driving at the time. Following a jury trial, a verdict was returned against Mildred Plummer on her claim for personal injuries, against William J. Plummer on his claim for loss of consortium, and for him in the amount of $415.00 for property damage. The plaintiffs appeal. We treat the case as though Mildred Plummer and Steven R. Loonan, drivers of the two cars involved in the accident, were the only parties.

We are confronted with only one issue--failure of the trial court to submit as specifications of negligence against defendant his alleged violation of section 321.285, The Code, dealing with speed. Plaintiff insists there was substantial evidence to support such a submission. The question first arose when the trial court refused to permit an amendment at the close of plaintiff's evidence to add excessive speed and violation of the assured clear distance ahead rule as specifications of negligence to those recited in the petition as originally filed. The objection was renewed when the instructions omitted speed from the issues submitted to the jury.

The important facts may be related quite briefly. At the time of the accident plaintiff was proceeding east on East Donald Street in Waterloo, approaching the driveway into her home. Approximately 270 feet to the west of her driveway, where she intended to turn left, a slight rise in the road comes to a crest. As plaintiff came up to this crest and started on the downgrade, she was driving approximately 25 miles per hour. From that point on she reduced her speed until at the time she started her left turn she was traveling about seven miles per hour. At the crest of the hill, she had looked in her rear vision mirror and had seen no traffic behind her for at least 400 to 450 feet. She also activated her left turn signal at that time. When she was 72 feet from her driveway, she again made an observation to the rear and saw no traffic behind her.

As she started her left turn, she glanced once more in her rear vision mirror and saw the defendant 'coming very fast.' He was then only 20 feet from her and was attempting to pass. The impact occurred almost instantaneously. The speed limit at the place of the accident is 45 miles per hour. Plaintiff does not claim defendant was exceeding this statutory maximum, but insists there was enough circumstantial evidence to have the jury decide if defendant was exceeding a speed which was reasonable and proper under the conditions then existing. She points to certain time intervals testified to by her neighbors, the force of the impact, the extent of the damage, and other circumstances which she says suggest excessive speed.

Plaintiff originally alleged defendant was negligent in five particulars, none of which involved speed. At the conclusion of her evidence, she asked leave to amend by adding four new specifications of negligence. The trial court permitted the amendment as to two of these, which merely repeated as violations of defendant's common law duty acts which had already been set out as statutory violations. These dealt with defendant's failure to have his vehicle under control and failure to give a signal of his intention to pass plaintiff's vehicle.

Plaintiff also sought by this amendment to allege as negligence that defendant drove 'at an unreasonable and improper speed in view of the conditions then existing' and 'at such a speed that he was unable to bring (his vehicle) to a stop within the assured clear distance ahead,' both in violation of section 321.285, The Code.

The trial court refused this part of the amendment. Later the trial court refused to submit the issue of speed to the jury on either theory.

Plaintiff first argued the trial court refused the proffered amendment because it was belatedly made. She claimed prejudicial error, relying on rule 88, Rules of Civil Procedure, which authorizes amendments to conform to the proof.

We have frequently held the trial court has broad discretion in permitting or denying such amendments and, unless there is an abuse of such discretion, we will not interfere. We have also said an amendment to conform to the proof is allowable under rule 88 only if it does not substantially change the issues. It is clearly established that to allow such amendments is the rule, to deny them the exception. W & W Livestock Enterprises, Inc. v. Dennler (Iowa 1970), 179 N.W.2d 484, 488, and citations.

If that were the basis of the trial court's refusal, we would be disposed to reverse upon a showing of prejudice. However, the plaintiff appears to have abandoned that argument, agreeing, tacitly at least, that the amendment was rejected because the trial court found it did Not conform to the proof and presented no ground of negligence which, under the record, could be submitted to the jury. We believe this was the real reason behind the trial court's decision. We believe, too, the ruling was clearly right.

Under our previous interpretations of the assured clear distance ahead portion of section 321.285, we have refused to apply that standard to situations when one motorist turns into the path of another who is at...