Sanford v. Nesbit

• Citation: 11 N.W.2d 695,234 Iowa 14
• Decision Date: 16 November 1943
• Docket Number: 46342.
• Parties: SANFORD v. NESBIT et al.
• Court: United States State Supreme Court of Iowa

11 N.W.2d 695

234 Iowa 14

SANFORD v. NESBIT et al.

No. 46342.

Supreme Court of Iowa

November 16, 1943

Bradshaw, Fowler, Proctor & Fairgrave, of Des Moines, for appellants.

R E. Hanke, of Des Moines, for appellee.

GARFIELD Justice.

On October 13, 1942, about 3 p.m., defendants' beer truck and plaintiff's coal truck collided. Both were traveling west on paved primary highway 60 east of Carlisle. Defendants' truck was ahead of plaintiff as they crossed a bridge over the Middle river. Plaintiff testified that toward the west end of the bridge he pulled out to the left; seeing that the road was clear, he sounded his horn as a signal he intended to pass; defendants' truck then pulled further to the right; plaintiff pulled alongside the beer truck on its left or south as the vehicles left the bridge; plaintiff drove his left wheels off the pavement onto the south shoulder to leave plenty of room in passing; at a point 125 feet west of the bridge, while plaintiff was still in the act of passing, the beer truck traveled to the south of the center of the highway and struck plaintiff's truck, sending it through the guard rail and down an embankment of 25 feet.

Smith another trucker, was following plaintiff at a distance of some 400 feet and saw what happened. These three truck drivers were the only persons who saw the collision. Smith corroborated plaintiff's testimony in its essentials. Three boys were driving east. They testified for plaintiff. While they did not witness the collision, they did see plaintiff's truck "just after it went through the guard rails" and "saw the Lamberti truck come from the south side of the pavement then on down where it came to a stop *** at least three blocks west." The driver Lamberti, whom we call defendant (the suit is also against the Nesbit Distributing Co., owner of the beer truck), was the only defense witness regarding the collision. Plaintiff, defendant and Smith agree that before plaintiff's truck went off the highway and through the guard rail, the beer truck collided with the northwest corner of the bridge

Defendant's version of what happened is that plaintiff struck the left rear of his truck, sending it to the northwest against the corner of the bridge, causing him to lose control of the beer truck, and that the two vehicles did not thereafter come in contact. Defendant admits that his truck, after striking the bridge, traveled to the south of the center of the highway because, as he claims, it was out of control. Defendant says he heard no signal given by plaintiff, that he had seen his truck when it was 300 feet behind him and did not see it again until it was in the ditch after the collision. Defendant admits that shortly after the collision he said he did not know what happened.

The trial resulted in a verdict for plaintiff and judgment for $1,617. Defendant's complaints upon this appeal pertain to the court's instructions.

1. The single charge of negligence in the petition which was submitted to the jury is that defendant drove his truck to the left of the center of the highway, failing to yield half the traveled way to plaintiff who was passing defendant at the time. Defendant contends the court erred in submitting this charge of negligence because there is no evidence that he drove his truck to the left of the center of the highway or failed to yield half the traveled way to plaintiff. The record does not support this contention. There is ample evidence to sustain this charge of negligence.

It is also urged that the alleged negligence of defendant was not the proximate cause of the collision (if there was a collision) which, it is claimed, occurred after plaintiff's truck had safely passed. This contention is likewise without merit. Testimony for plaintiff is that the collision occurred on the south half of the highway while plaintiff was in the act of passing defendant. Berridge v. Pray, 202 Iowa 663, 210 N.W 916, upon which defendant relies, is not in point. There the collision did not occur until after plaintiff had safely passed defendant's car and was "in the clear." We held, therefore, that defendant's failure to turn to the right to permit plaintiff's car to pass, after a signal that plaintiff desired to pass, could not have caused the collision and it was error to submit such charge of negligence.

It is contended the court erred in submitting the specification of negligence because it was not stated that plaintiff had given an audible signal. The statute upon which plaintiff relies is that part of section 5024.03, Code 1939, which provides that the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal.

Plaintiff alleged in his petition, though not as a part of the charge of negligence, that he sounded his horn as he started to pass defendant. Both plaintiff and Smith so testified. Prior to filing his motion for new trial, defendant made no attack upon the petition because of the failure to allege the sounding of the horn as a part of the charge of negligence. At the close of plaintiff's evidence, defendant moved to strike this specification of negligence because there was no evidence to support it. In this motion defendant stated, "The evidence of both plaintiff and defendants being that when the horn was sounded defendant moved the truck over on the right side of the road."

Defendant, having treated as sufficient throughout the trial the pleaded specification of negligence, is in no position to claim for the first time after the verdict that it charged no actionable negligence because it did not allege the giving of a signal. Gookin v. Baker & Son, 224 Iowa 967, 969, 276 N.W. 418; Watson v. Des Moines Ry. Co., 217 Iowa 1194, 1198, 251 N.W. 31; Danner v. Cooper, 215 Iowa 1354, 1367, 1368, 246 N.W. 223.

II. It was stipulated that after "the court had completed his reading of instructions to the jury, plaintiff's counsel suggested to the court that an instruction should have been given, including the statutory provision on overtaking vehicles and passing. That thereupon the court prepared and gave instructions Nos. 6 1/2 and 18 1/2, without objection on behalf of defendants' attorneys."

Instructions 6 1/2 and 18 1/2 are identical and state: "You are instructed that a statute of this state provides: 'The driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle."' The statute quoted is that part of Code section 5024.03 which is applicable to the case. Defendant interposed a counterclaim and No. 18 1/2 was inserted in that part of the instructions dealing with defendant's right to recover on his counterclaim.

In his motion for new trial, defendant excepted to instructions 6 1/2 and 18 1/2 as improper in that they were a bare statement of the statute without further instruction on the reciprocal rights and duties of the parties. No other instruction gave the jury any guide as to the law governing the charge of negligence made by plaintiff. Defendant...