Reich v. Miller

• Decision Date: 06 June 1967
• Docket Number: No. 52575,52575
• Citation: 151 N.W.2d 605,260 Iowa 929
• Parties: Lawrence V. REICH, Appellee, v. Frances L. MILLER, Appellant.
• Court: Iowa Supreme Court

Page 605

151 N.W.2d 605

260 Iowa 929

Lawrence V. REICH, Appellee, v. Frances L. MILLER, Appellant.

No. 52575.

Supreme Court of Iowa.

June 6, 1967.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellants.

Paul W. Deck and Robert J. Larson, Sioux City, for appellee.

GARFIELD, Chief Justice.

The important question this appeal presents is whether defendant's alleged violation of the assured clear distance rule set out in section 321.285 Codes 1958, 1962 was properly submitted to the jury as a charge of negligence against him by plaintiff, driver of a car which came into the intersection of city streets defendant was approaching from the right. We hold it was error to submit this charge of negligence under the situation presented by the evidence.

This is the second appeal of the case. The first trial resulted in judgment on directed verdict for defendant on the ground of plaintiff's contributory negligence. On plaintiff's appeal we held, two judges dissenting, the issue of freedom from contributory negligence should have been submitted to the jury. The question before us now was not then presented or considered. Reich v. Miller, 257 Iowa 1040, 135 N.W.2d 651. The second trial with a different judge presiding resulted in judgment on jury verdict for plaintiff and the appeal is by defendant.

I. The general factual situation appears from our first opinion. We will attempt to minimize repetition. The collision occurred about noon on May 29, 1961 in the intersection of Twelfth and Jennings streets in Sioux City. Plaintiff was driving north on Jennings, defendant west on Twelfth. Thus defendant was approaching the intersection from the right and had the directional right of way. Section 321.319 Codes 1958, 1962, provides, 'Where two vehicles are appraoching * * * so that their paths will intersect and there is danger of collision, the vehicle * * * from the right shall have the right of way.'

There is a large house at the southeast corner of the intersection with a retaining wall around it about 34 inches high. On top of the wall were some bushes about five feet high. Elm trees were in the parking. Twelfth street is 28 feet wide.

Plaintiff testified that when he was five to ten feet south of the south curbline of Twelfth street he could see all the block on Twelfth to the east; when he first looked to his right the front end of his car was parallel with this curbline; he then saw defendant's car a few feet east of the alley in the center of the block; (defendant said he measured 170 feet from the east curbline of Jennings to the west curb of the alley); plaintiff was unable to estimate the speed of the car when he first saw it; after looking to his right he looked to his left and saw nothing; he then looked to the north while proceeding across the intersection; plaintiff looked to his right again and saw defendant's car about 20 feet away; plaintiff 'stepped on the gas to get out' but defendant's car struck his after it moved three to five feet to a point even with the north curbline of Twelfth.

Plaintiff estimated his own speed at 15 to 20 miles per hour and defendant's speed at 40 to 45 miles per hour. Plaintiff also said defendant admitted after the collision he did not see plaintiff.

Defendant's version is quite different. He and his wife, a front-seat passenger, insist defendant did not exceed 20 miles per hour after leaving Virginia street, a block east of Jennings; that plaintiff was driving faster than defendant was; he did not tell plaintiff he did not see him but plaintiff made such a statement to defendant. Another witness testified plaintiff told him he didn't see defendant before the accident. Defendant's version is it is necessary to be almost to the crosswalk on the east side of Jennings before there is any vision to the south.

This appears to be a typical intersection collision case with each party claiming and testifying he was first in the intersection and the other was driving faster than he was.

In considering the important question posed at the outset we think it is significant that plaintiff does not claim he stopped or reduced his speed at any time before the collision but proceeded across the intersection without any such movement.

II. The court submitted to the jury the five specifications of negligence plaintiff alleged against defendant. Failing to: (1) have his car under proper control; (2) maintain a proper lookout; (3) reduce his speed to a reasonable and proper rate when approaching and traversing an intersection; (4) yield the right of way to plaintiff's automobile which was already in the intersection; and (5) operate his automobile so as to be able to stop within the assured clear distance ahead.

Propriety of submitting only this last specification is challenged on this appeal.

It is apparent specifications (1) and (3) charge violation of code section 321.288 which provides, so far as applicable,

'Control of vehicle. The person operating a motor vehicle * * * shall have the same under control and shall reduce the speed to a reasonable and proper rate * * *

'3. When approaching and traversing a crossing or intersection of public highways, * * *.'

We have held several times this statute does not require reduction of speed if the motorist is already proceeding at a reasonable and proper rate. Miller v. Stender, 251 Iowa 123, 131, 98 N.W.2d 338, 343 and citations; Francis v. Barnes, 256 Iowa 1176, 1180, 130 N.W.2d 683, 685; Turner v. Detrick, 257 Iowa 1197, 1202, 136 N.W.2d 253, 256.

III. The assured clear distance rule is set out in the first paragraph of Code section 321.285 (section 5029 Code 1935) which requires all motorists to drive 'at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead, such driver having the right to assume, however, that all persons using said highway will observe the law.'

The first Iowa decision we find that sheds light on our problem is Wells v. Wildin, 224 Iowa 913, 922, 923, 277 N.W. 308, 314, 115 A.L.R. 169, 176, 177. Defendant's decedent, who had the directional right of way, collided with a car which approached the intersection from the left. He was charged with violating the assured clear distance rule. Although there was clear evidence he was speeding we held the specification referred to should not have been submitted to the jury. As here, the vision of both drivers was partially obstructed on decedent's left as he approached the intersection. This from the opinion is applicable here:

'(7) Other statutory rules of the road fix the standards of care required of decedent under the circumstances disclosed by the record, and Code § 5029, requiring the driver of an automobile to drive his car at a speed that will enable him to stop his car within the assured clear distance ahead, has no application to the fact situation in the case at bar and the motion should have been sustained. * * * circumstances that would place a driver within the prohibition of the first part of he first paragraph of section 5029 requiring a person to drive at a careful and prudent speed not greater than nor less than is reasonable and proper having due regard to the traffic, surface, and width of the highway, etc., would not necessarily result in a violation of the provisions of the latter part of the paragraph requiring a driver to drive within the assured clear distance ahead.'

Van Wie v. United States, N.D.Iowa (Judge Graven), 77 F.Supp. 22, 38, contains an exhaustive review of our statutory rules of the road and Iowa decisions bearing thereon. Plaintiff approached the intersection from the right, with the directional right of way, on a primary highway protected by stop signs. The mail carrier approached from the left. The United States contended plaintiff was contributorily negligent in violating the assured clear distance rule. After setting out the first paragraph of section 321.285 the opinion points out: 'The portion of the statute just set forth specifies two duties: (1) to drive at a prudent and reasonable rate of speed under the conditions, and; (2) ability to stop within the assured clear distance ahead. (citations) The second duty referred to is known as the 'assured clear distance' rule. In general, it is not regarded as applicable where motor vehicles are approaching each other at intersections. Wells v. Wildin, 1938, 224 Iowa 913, 277 N.W. 308, 115 A.L.R. 169.'

In Leinen v. Boettger, 241 Iowa 910, 922, 926, 44 N.W.2d 73, 80, 82, plaintiff drove his car off the pavement to avoid colliding with defendant's car which had been parked at the side of an intersecting highway and then backed into the intersection. Defendant contended plaintiff was negligent in violating the assured clear distance requirement. The opinion holds no such violation was shown but adds 'We question whether the facts make the 'assured clear distance' statute (section 321.285, Code, 1946) applicable, * * *.'

The facts in Boegel v. Morse, 251 Iowa 1253, 1258, 104 N.W.2d 826, 829, are much like those in Leinen v. Boettger, supra, except that defendant Morse drove into the intersection from the left and turned on the primary highway ahead of plaintiff who turned onto the shoulder to avoid a collision. There was evidence defendant was driving as slow as five miles per hour and plaintiff saw him approach the intersection at some distance. We held it was not error to refuse to instruct the jury as to plaintiff's claimed violation of the assured clear distance statute on the issue of contributory negligence. 'Under this record, we do not think the 'assured clear distance ahead' statute is applicable. Leinen v. Boettger, 241 Iowa 910, 44 N.W.2d 73; Miller v....