Richards v. Begenstos

• Decision Date: 11 December 1945
• Docket Number: 46763.
• Parties: RICHARDS v. BEGENSTOS et al.
• Court: Iowa Supreme Court

21 N.W.2d 23

237 Iowa 398

RICHARDS v. BEGENSTOS et al.

No. 46763.

Supreme Court of Iowa

December 11, 1945

Rehearing Denied March 13, 1946.

Appeal from District Court, Washington County; Frank Bechly Judge.

Baldridge & Bailey, of Washington, and D. C. Nolan of Iowa City, for appellant.

S W. Livingston, of Washington, and Hallagan & Cless, of Des Moines, for appellees.

BLISS Justice.

The collision on which the action is based was in the town of Ainsworth, at about 9:00 A.M. on January 18, 1944, on Iowa Highway No. 92. The plaintiff, a man 76 years old, lived in the town of Cotter in Louisa County, but was then, and had been employed since 1938, as a bookkeeper by a livestock firm in the city of Washington, in Washington County. Each day while so employed he had driven to his work in his automobile from Cotter to Washington in the morning over highway 92, and in the evening he returned home in the same manner over the same route. The distance was twelve miles and he passed through Ainsworth enroute.

Begenstos lived at Waterloo and was employed by his codefendant as a tobacco salesman. In covering his territory he drove a panel truck owned by his employer.

The petition of plaintiff alleged that Begenstos was negligent in, (1) failing to keep a proper lookout; (2) in failing to drive his automobile at a careful and reasonable rate of speed under the circumstances; (3) in failing to exercise ordinary care to avoid colliding with plaintiff's car when he saw he was in a position where he would be injured unless such care was used; (4) in failing to yield the right-of-way to plaintiff; (5) in driving at a high and excessive rate of speed of more than 25 miles an hour in violation of the speed laws of the state as applied to the zone and district in which the collision occurred. The answer of defendants denied these allegations.

The jury could have found the facts hereinafter stated established by the evidence. A district engineer of the State Highway Commission who had supervision over highway 92 in that locality testified to the course of the highway, the location of material places, and to elevations and distances. He testified from personal knowledge, aided largely by an engineer's blueprint plat and profile used in the construction of the highway, so that these matters are put beyond reasonable dispute. The highway extends through the town in a general east and west direction veering slightly from northwest to southeast. The paved slab of the road is eighteen feet wide. In constructing the highway the engineer surveyed it in stations one-hundred feet apart. These stations with their numbers were marked on the pavement as it was laid. They increase progressively in numerical value from west to east.

The defendants' truck was proceeding from the west to the east. Plaintiff was driving from the east to the west. As you enter the town from the west the first street to intersect the highway from the north is Third street at approximately station 1372+90 feet or 1372.90. We will refer to the stations by decimal. Just east of Third street at station 1373.75 and facing the west was a 25-mile-an-hour speed limit sign. The elevation at Third street is 674.3 feet above sea level. Continuing east for 460 feet to station 1377.50, which has an elevation of 670.6 feet, there is a down grade with a drop of 3.7 feet. Proceeding east 300 feet to station 1380.50 the rise in the grade is 7.22 feet. Station 1380.50, with an elevation of 677.88 feet, is the highest point on the highway in the town of Ainsworth. The witness in his testimony gave this elevation as 675.8 but it was apparently an advertence as the profile from which he was testifying gives the figure as 677.88. It was over the top of this hill that defendants' truck passed eastward just prior to the collision. Proceeding east from station 1380.50, the top of the hill, for 600 feet to station 1386.50, which has an elevation of 661.51 feet, there is a sharp down grade with a drop of 16.37 feet. Going from station 1386.50 for 115 feet to station 1387.65 which is the west end of a 60-foot bridge, over Long Creek, the highway is almost level, since the elevation at station 1387.65 is 661.51 feet. Station 1387.65 marks the corporate limits of the town. In order to locate the Hazelett Oil Station, the Shamrock Inn and other material points it is necessary to go back to the top of the hill, station 1380.50. About 150 feet east of this station, First street opens into the highway but does not extend beyond. Its east line was at station 1382.54. About 25 feet east of the eat line of the street, at station 1382.84 was the east 25-mile-an-hour speed limit sign. It stood on the north shoulder of No. 92, about ten feet from the paving and faced east. The speed zone was about 900 feet long. As noted above, the highest point on the highway in the locality of the collision was 677.88 feet. The grade approaching that point from the east and west was not pronounced. This was true for about 100 feet on each side of it. The top of the hill was gently rounded for about 200 feet or slightly more. A layman might have difficulty in ascertaining just where the highest elevation of the hill was, and a surveyor would need his instruments to locate it. We mention this as it bears upon testimony of the plaintiff and others as to locations and distances. Then, as the road proceeds east it has what the engineer spoke of as a vertical curve, that is the grade descends more sharply. This descent begins a little east of station 1381.50. The steepest part of the hill is going east between stations 1382.50 and 1384.50, where the grade is 3.82 per cent. The Hazelett Oil Station, at which the plaintiff intended to stop for service that morning, is on the south side of highway 92. He had patronized it at other times. It was operated by Hugh Hazelett and his brother. The testimony is somewhat contradictory as to the location of the station, with respect to First Street. The engineer and Hugh Hazelett testified that part of the property might be on what would have been First Street had it been extended across the highway. However, Hazelett also testified that it was about 20 feet west of First Street. The dimensions of the station are not shown. Neither is the width of First street. If it is 60 feet wide its west line would be at approximately station 1382. The home of the father of the Hazelett boys immediately adjoined the oil station on the west and further west and about 200 feet from the oil station is the Standard Oil station.

East of the Hazelett Oil Station and on the south side of the highway is the Shamrock Inn or Cafe. The west side of it was about 50 or 60 feet east of the oil station. The dimensions of the Inn do not appear but it had a lean-to kitchen at the east end of the building. The Inn and the Hazelett Oil Station were both about 30 feet south of the pavement. The pavement had the usual sloping curb to facilitate the flow of water. This curbing and the south shoulder of the pavement and all of the space between the paving and the Inn and the oil station was covered with crushed rock. It extended from a point, estimated as both 25 and 50 feet south of the Inn, to west of the oil station, and with the pavement made a hardsurfaced way approximately 48 feet wide, for that entire distance.

We insert herein a photostat of plaintiff's Exhibit C, which is a photograph of highway No. 92 looking east along it past the Hazelett Oil Station on the right, the entrance of First Street on the left, the Shamrock Inn on the right:

RPT.CC.1946104066.00010

(Image Omitted) On east at the foot of the hill is the bridge over Long Creek and, beyond the highway curves up to the left eastward over a long hill which reaches an elevation at station 1406 of 722 feet, 60.5 feet higher than the elevation at the bridge. The Hazelett Oil Station is not shown on the right in the picture but the 'D-X' gasoline sign is shown on the pole in front of it at the corner of the property. Just east of the First Street on the north shoulder of highway 92 is the speed limit sign which marked the east limit of the 25-mile-an-hour zone. This sign was at station 1382.84. The collision of the two cars was at station 1383 just 16 feet farther east than the sign and across the pavement on the edge of the crushed rock driveway about even with the east side of the kitchen.

The plaintiff left his home at Cotter about 8:00 o'clock on the morning of January 18, 1944. It had rained or sleeted during the night and the pavements were covered with a skim of ice on which a white frost had formed. The pavement was very slippery. He testified: 'As I approached the town of Ainsworth I came down the hill east of the creek rather slow because that is a treacherous hill and when I got to the bridge I was going from 10 to 15 miles an hour. As I went on the bridge I did not accelerate or change my speed. The condition of the pavement was such that it wasn't safe for fast driving, the pavement was slippery and for that reason I was driving slow. I intended to turn into the Hazelett Oil Station. * * * After I crossed the bridge maybe 200 or 250 feet I decided to cross the pavement to get over on that rock. The reason I intended to get on the rock there at that place was because I considered it safer to cross there than to go further up; the hill was steeper right in front of the station.' He said he wished to get on the rock because the pavement was so slippery that it was difficult to make a short turn on it. It was his intention to make what he called a 'long turn' to get to the driveway just below the Inn. He was about 150 feet east of the east end of the rock drive when he decided to begin the long turn. Just how he intended to execute such a...