Rogers v. Jefferson
| Decision Date | 16 November 1937 |
| Docket Number | 44009. |
| Citation | 275 N.W. 874,224 Iowa 324 |
| Parties | ROGERS v. JEFFERSON. |
| Court | Iowa Supreme Court |
Appeal from District Court, Black Hawk County; R. W. Hasner, Judge.
Action at law for damages alleged to have resulted from a collision between an automobile owned by plaintiff, which was being driven by plaintiff's son, and an automobile owned and being driven by the defendant. The defense was a general denial. At the close of the evidence defendant moved for a directed verdict, which was overruled. There was a verdict for plaintiff, and judgment accordingly. The usual motion for new trial and objections and exceptions to instructions was made, and was by the court overruled, and defendant has appealed.
Affirmed.
Hal H Mosier, of Waterloo, and Hal W. Byers and McMartin, Herrick & Langdon, all of Des Moines, for appellant.
McCoy & Beecher, of Waterloo, for appellee.
The collision took place at about the center of the intersection of two graveled county trunk highways. It was on a clear day and the roads were dry. There were no physical obstructions to in any way obscure the view of the driver of either car for more than 30 rods back from the intersection. At the point of the accident the highways were practically level. The defendant, accompanied by his wife and one son in the front seat with him, and another son in the back seat, was traveling easterly in his 1931 Chevrolet on the east and west road. Plaintiff, accompanied by his wife, who was in the back seat, and his son who was driving, the plaintiff sitting beside him in the front seat, was traveling northerly in his 1925 Dodge on the north and south road. The traveled part of the highways was approximately 28 feet in width. There was a " stop" sign north of the intersection and to the west of the highway, facing traffic from the north. There was a " slow" sign west of the intersection and to the south of the highway, facing traffic from the west. There were no signs facing traffic from the south or from the east. The northeast and southeast corners of this intersection had been widened and extended so as to make the corners round, so that traffic from the east on the east and west road would turn north on a rounded corner and south on a rounded corner, while traffic proceeding on west would go straight through the center of the intersection. The northwest and southwest corners of the intersection were square.
We have already dealt with the facts relating to this collision in a case brought by Mrs. Rogers against the same defendant in the case of Rogers v. Jefferson reported in 272 N.W. 532.It will therefore not be necessary to go into much detail in describing the scene of the accident or the facts surrounding the same.
Appellant's chief contention is that plaintiff was guilty of contributory negligence as a matter of law, in that he failed to keep a proper lookout, failed to have his car under control, and failed to reduce the speed of his car to a reasonable and proper rate, and drove voluntarily into a place of danger. In the other case, wherein Mrs. Rogers was plaintiff, the same contention was made, and we held against the appellant in that case. However, it is pointed out by appellant in his argument in the instant case that Mr. Rogers owned the car, and the son was driving it with his consent, and hence the negligence of the son was imputed to the father, and in this the appellant is correct.
There is little controversy as to the facts, or for that matter, as to the law. But counsel for the respective parties seem to differ widely in the selection of the rules of law applicable to the admitted facts; plaintiff's counsel contending that under the facts in this case the question of contributory negligence was a question for the jury, while counsel for appellant insist that the court should say as a matter of law, under the conceded and proven facts, that the plaintiff's own negligence and that of his son contributed to bringing about the accident and consequent injury, and for this reason is barred from recovery. As we have many times said, the question of contributory negligence, generally speaking, is peculiarly a question for the jury. Lamb v. Wagner Mfg. Co., 155 Iowa 400, 404, 136 N.W. 203; Toney v. Interstate Power Co., 180 Iowa 1362, 1378, 163 N.W. 394; Phelan v. Foutz, 200 Iowa 267, 271, 204 N.W. 240; Murphy v. Iowa Electric Co., 206 Iowa 567, 220 N.W. 360.The rule seems to be that where the conduct of the plaintiff is such that fair-minded and reasonable men might honestly and sincerely arrive at a different conclusion with respect to the matter, then the court should submit the question to the jury, and that it is only when it becomes apparent to the court that the conduct of the plaintiff was such that every fair-minded and reasonable man could come to but one conclusion, that the court is warranted in directing a verdict on the issue of contributory negligence. The rule is well stated by Justice Kindig in the case of Murphy v. Iowa Electric Company, supra, 206 Iowa 567, at page 572, 220 N.W. 360.
We have here the plaintiff and defendant, with nothing to obstruct their views, both familiar with the local surroundings, approaching this intersection at a speed of about 30 or 35 miles per hour. The conceded facts are that plaintiff and his son saw the defendant's car when they were about 30 rods south of the intersection. They then looked toward the east, or their right, and neither of them looked again to the left, and while they had knowledge, and plaintiff's son testified that he was conscious of the presence of the defendant's car on the highway, he never looked, and did not see it again until just immediately prior to the impact of the two cars. He had only time to swerve his car to the right two and a half or three feet. The right front wheel and fender of the defendant's car struck the left front wheel and fender of the plaintiff's car. The impact resulted in the plaintiff's car swerving to the northeast, crossing over the drainage ditch through a barbed wire fence, coming to a stop in the cornfield about 60 or 80 feet from the point of the collision; while the defendant's car was swerved to the left and was facing somewhat northwest about 35 feet from the point of collision, still upon the traveled portion of the north and south highway. Neither car changed its speed as it approached and entered this intersection at 30 or 35 miles per hour.
The question is, Would the court be warranted in saying, as a matter of law, that the plaintiff was guilty of contributory negligence in failing to keep a proper lookout, in failing to reduce his speed to a reasonable and proper rate as he entered this intersection, or in failing to have his car under control so as to bring it to a stop within the assured clear distance ahead, taking into account the following facts: The moderate rate of speed of the cars; the fact that plaintiff had a right to assume that the defendant would take cognizance of the presence of the " slow" sign and of the statutory rules of the road, granting the right of way to the plaintiff who was approaching him from the right, when their cars approached the intersection simultaneously? We are of the opinion that there is room for fair-minded and reasonable men to honestly differ as to whether or not the conduct of the plaintiff and the driver of his car was in accord with that of an ordinarily cautious and prudent person under the same circumstances.
In the case of Roe v. Kurtz, 203 Iowa 906, 210 N.W. 550, a case involving a collision at an intersection within the corporate limits of the city of Washington, Iowa, this court under the circumstances in that case, refused to say as a matter of law that it was negligence upon the part of the plaintiff in driving into the intersection, without ever looking to the left, until just before the collision, when it was too late to do anything about it. Appellant attempts to distinguish the instant case from that case by the fact that in the instant case the plaintiff had looked 30 rods back and was conscious of the presence of the other car, and in this respect the facts in these two cases differ. Appellant says that since the plaintiff had knowledge of the presence of the defendant's car, he comes under the rule announced in Parrack v. McGaffey, 217 Iowa 368, 251 N.W. 871; that is, by placing himself voluntarily in a place of danger he can no longer say he was free from negligence Had the defendant's car been going at an excessive rate of speed at the time plaintiff saw it, or had defendant increased its speed after the plaintiff last saw it, until it was approaching the intersection at an excessive and dangerous rate of speed, thus creating a hazard to the plaintiff in attempting to pass in front of it, we would be confronted with a different situation. But can the court say as a matter of law, taking into consideration the speed at which the defendant was proceeding toward the intersection, that there was at any time a zone of obvious danger confronting the driver of plaintiff's car? The evidence is that he could have stopped his car within 25 or 30 feet. Had the plaintiff been looking directly at the defendant, he would not have known until the defendant got within a few feet of the intersection whether or not he was going to slow down in obedience to the " slow" sign, or was going to stop, if necessary, and yield the right of way to the plaintiff's car. The driver of plaintiff's car had a right to assume that defendant would comply with the law of the road until he knew, or until, in the exercise of ordinary care, he should have known otherwise. The standard or degree of care by which the plaintiff's conduct is to be governed is that of...
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