Ritter v. Andrews Concrete Products & Supply Co., 49599

• Decision Date: 16 December 1958
• Docket Number: No. 49599,49599
• Citation: 93 N.W.2d 787,250 Iowa 297
• Parties: Larry W. RITTER, Adm. of the Estate of Larry D. Ritter, Deceased, Plaintiff-Appellant, v. ANDREWS CONCRETE PRODUCTS & SUPPLY COMPANY, a partnership, Ray T. Andrews, Nina Andrews and Claire Johnsen, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 787

93 N.W.2d 787

250 Iowa 297

Larry W. RITTER, Adm. of the Estate of Larry D. Ritter, Deceased, Plaintiff-Appellant, v. ANDREWS CONCRETE PRODUCTS & SUPPLY COMPANY, a partnership, Ray T. Andrews, Nina Andrews and Claire Johnsen, Defendants-Appellees.

No. 49599.

Supreme Court of Iowa.

Dec. 16, 1958.

Sondrol & Powell, Clear Lake, Breese & Cornwell, Mason City, for appellant.

Westfall, Laird & Burington, Mason City, for appellees.

HAYS, Justice.

Plaintiff seeks damage for the death of his decedent due to alleged negligence in the operation of defendants' truck. The petition alleges seven specific acts of negligence. The trial court submitted two thereof to the jury which returned a verdict for the defendants. Plaintiff-appellant assigns as error the failure to submit the other specifications of negligence and also the giving of Instruction No. 6. The record shows that objections to the instructions, as required by Rule 196, R.C.P., 58 I.C.A., were directed to the failure to submit two of the omitted specifications of negligence and we will consider only these two. Stewart v. Hilton, 247 Iowa 988, 77 N.W.2d 637; Jurgens v. Davenport, R. I. & N. W. Ry. Co., 249 Iowa ----, 88 N.W.2d 797.

There is no material dispute as to the facts. On the morning of October 6, 1956, Larry D. Ritter, age ten, and David Kofoed, age nine, were riding their bicycles east upon Highway No. 18, between Clear Lake and Mason City, Iowa. This highway has a 22 foot paved surface and approximately 10 foot shoulders. The pavement was dry and visibility good. On said date defendant Claire Johnsen was driving a truck, owned by the other defendants, west upon this highway. The truck, a ready-mix concrete truck, was 24 feet long and 8 feet wide and weighing about 13 tons. It was a ten wheel vehicle, all being equipped with hydraulic brakes. Defendant Johnsen first observed the boys when they were between a third to a half a mile ahead, at which time the truck was going about 40 miles per hour. He took his foot off the throttle, thus gradually slowing the truck. He observed the boys ride onto the south shoulder to permit a car going east to pass them. They then returned to their south lane and continued eastward. They were riding abreast with the Ritter boy being on the north, or nearer the center line of the pavement. At this time the truck was at the extreme north edge of the pavement. He also saw a black dog following the boys and observed it running on the shoulder and then on the pavement behind the boys. When the truck was approximately 20 feet east of the boys, the dog ran into the north lane of the pavement at which time the brakes were applied and the right front wheel of the truck was on the north shoulder. The dog suddenly darted to the south and into the front wheel of the Ritter bicycle. In attempting to keep his balance, he turned the bicycle to the north at about a ninety degree angle and over against the side of the truck and was killed. At the time of the collision the speed of the truck was approximately 25 miles per hour.

The trial court submitted two alleged acts of negligence to the jury as follows: 'That the said Claire Johnsen was negligent in that after observing the said Larry Dean Ritter upon the highway at the time and place in question, he failed to have the truck under control upon approaching said child and failed to bring said truck to a stop so as to avoid a collision with said child.' The foregoing includes two of the seven alleged acts of negligence and no exception was taken as to the form or manner in which they were stated to the jury.

I. The first assigned error, and the most strenuously argued, is the failure of the trial court to submit the question of a 'proper lookout'.

It is true, as contended by appellant, that it is the duty of the court to submit to the jury all issues presented by the pleadings upon which they is evidence tending to support them. Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696; Clark v. Umbarger, 247 Iowa 938, 75 N.W.2d 243. However, where there is a clear overlapping or duplication in the acts of negligence set forth in the petition the court need not state them all but may select those that substantially cover the situation. Fleming v. Thornton, 217 Iowa 183, 251 N.W. 158; Bonnett v. Oertwig, 234 Iowa 864, 14 N.W.2d 739.

When speaking of 'proper lookout' in connection with the operation of a motor vehicle upon the highway, the common conception thereof is the duty of seeing that which is clearly visible or which in the exercise of ordinary care would be visible. Under this record it appears beyond any doubt that defendant Johnsen saw the boys when they were some distance ahead and continued to observe them up to the moment of the collision. Thus, under the common conception of the term, 'lookout' was not an issue.

However, 'lookout' under the definitions given it by this court has another and broader meaning. In Becker v. City of Waterloo, 245 Iowa 666, 673, 63 N.W.2d 919, 923, we said, 'Proper lookout means being watchful of the movements of one's own vehicle as well as the other things seen or seeable, and involves the care, prudence, watchfulness and attention of an ordinary, careful and prudent person under the circumstances.' In Devore v. Schaffer, 245 Iowa 1017, 1024, 65 N.W.2d 553, 557, 51 A.L.R.2d 1041, it is said with reference to the term 'lookout' that it depends on the context and may mean 'care to discover whether plaintiff was in a place of safety from possible injury by the contemplated movement of the truck and trailer.' See, also, Law v. Hemmingsen, 249 Iowa ----, 89 N.W.2d 386.

Appellant argues that there was ample...