Sayre v. Andrews

• Citation: 259 Iowa 930,146 N.W.2d 336
• Decision Date: 15 November 1966
• Docket Number: No. 52044,52044
• Parties: Terry SAYRE, by Marvin Sayre, Father and Next Friend, Appellant, v. Wayne ANDREWS, Appellee.
• Court: Iowa Supreme Court

Page 336

146 N.W.2d 336

259 Iowa 930

Terry SAYRE, by Marvin Sayre, Father and Next Friend, Appellant, v. Wayne ANDREWS, Appellee.

No. 52044.

Supreme Court of Iowa.

Nov. 15, 1966.

Jones, Cambridge, Carl & Howard, Atlantic, for appellant.

Don Carlos & Don Carlos, Greenfield, for appellee.

MASON, Justice.

This action at law seeks damages from third party motorist for personal injuries sustained by minor plaintiff in an accident wherein the automobile in which he was riding went into a ditch about a quarter mile south of Atlantic on the Chestnut Street road, allegedly as a result of third party's negligence.

Plaintiff, age 18, received serious personal injuries alleged to be permanent. He claims recovery for impairment of earning capacity, past and future pain and suffering hospital and medical expenses past and future.

At the close of plaintiff's evidence, defendant's motion for directed verdict was sustained. From judgment thereon, plaintiff appeals.

I. The accident occurred about 9:15 p.m. December 26, 1963. It was dark but not pitch black. The weather was cool and clear and the roadway was clear.

Chestnut Street road, herein referred to as Chestnut, is a paved highway 23 feet in width running approximately north and south in Cass County. There were no shoulders on either side and the west ditch was three to four feet deep. At one point Chestnut intersects at right angles with the county club road. 1560 feet north of this intersection is a driveway going east off Chestnut, serving the Rodgers property. Going north from the country club intersection, Chestnut goes downhill to beyond the Rodgers driveway, but it is steeper at the start and at the bottom of the hill. Some distance north of the intersection the road tends to level off for a space and then 260 feet south of the Rodgers driveway goes downhill again. Headlights of a northbound vehicle 450 feet south of the Rodgers driveway could be seen from the driveway. There was a space of 635 feet further south that similar headlights could not be seen from the driveway.

After attending a movie Jack Bair invited plaintiff and his date to ride with him in his father's automobile. The Bair car went south up Chestnut to the country club area, turned around and proceeded back onto Chestnut. Bair testified he was proceeding about 60 m.p.h.

Defendant Andrews' deposition taken before trial was offered by plaintiff. Defendant had picked up his daughter and the Rodgers girl at the theatre and turned into the Rodgers driveway to let her out. He then backed out of the driveway, stopped his car when its back end was three to four feet from the roadway (he would be sitting about 12 feet in front of the back end of the car) and looked in both directions once, but doesn't know which direction he looked first. From this point he claims to have an unobstructed view south on the highway for 470 feet to the top of the hill and saw no lights or automobiles approaching from either direction.

While looking out the rear end of his car, he proceeded to back out across the roadway diagonally northwesterly, intending to go south. When his right rear wheel was close to the west edge of the roadway and at an angle, he brought his car to a stop with a portion of it in the east lane. He then put his car in drive an was ready to go forward when he saw the headlights of the Bair car on his own side of the road, a good 400 feet south. Without continuing to observe the lights he immediately 'shot his car into the driveway,' as he could tell 'the car was coming fast enough that he wanted to get out of there.' After stopping in the Rodgers driveway, defendant observed the Bair car south of it swerve to the west side of the highway and go off the road. There was no contact between Bair's car and defendant's car.

Bair testified he first observed the Andrews car when he was in his right lane on top of the little knoll after he had been in the draw; the Andrews car lit up by Bair's headlights was headed southeast at about a 45 degree angle and occupied all the road with the front of the car in the east lane; the Andrews car was stationary but as Bair went forward Andrews pulled into the driveway until Bair's car passed; the back part of defendant's car was in the east lane of travel still on the highway.

When he first saw the Andrews car Bair applied his brakes and turned to the left; as his car swerved slightly he released the brakes and his car was going straight down the road until it started to veer into the Andrews car; he turned the car back to the west and the left wheel caught the shoulder and pulled it into the west ditch at a point just south of the Rodgers driveway. The Bair car, in going off the shoulder, rolled on its side somewhat, then righted itself and went on down the ditch, hit the Fehr driveway on the west, 180 feet north of the Rodgers driveway, went over it and came to rest with the back half of the automobile on the driveway and the front half beyond.

There were skid marks from both the left and right wheels of the Bair vehicle, both started on the east side of the road and extended to where the car went off the edge of the road. The overall distance was 200 feet and they crossed over the center of the road approximately 50 feet from where they went into the ditch.

II. Plaintiff relies upon defendant's negligence as The proximate cause of his injuries and damages in the following particulars: (a) Failure to keep a proper lookout; (b) Failure to yield the right-of-way to another vehicle approaching so closely as to constitute a hazard; (c) Driving in the left lane directly in front of the automobile in which plaintiff was riding; (d) Failure to have his car under control; (e) Failure to drive on the right-hand side of the road when driving up over a hill; and (f) when meeting the automobile in which plaintiff was riding.

As an affirmative defense defendant alleges the Sole and proximate cause of plaintiff's injuries was the negligence of Bair, driver of the vehicle in which plaintiff was riding, in: (a) Failure to have his car under control and (b) keep a lookout ahead; (c) Driving at an excessive and dangerous speed; and (d) driving at a speed greater than permitted him to stop within the assured clear distance ahead.

III. Defendant's motion for directed verdict at the close of plaintiff's evidence was sustained as to 23 of the 25 grounds urged. They need not be set out.

Plaintiff's notice of appeal limits the errors relied on for reversal. Rule 340(b), Rules of Civil Procedure. They are that the trial court erred in (1) sustaining defendant's motion for a directed verdict and (2) admitting testimony that Jack Bair entered a plea of guilty before a justice of the peace to a charge of not having his vehicle under control.

IV. We consider first whether plaintiff's evidence required submission of the cause to a jury.

In considering the propriety of a directed verdict for defendant the court gives plaintiff's evidence the most favorable construction it will reasonably bear. Citation of authority is unnecessary. Rule 344(f)2, R.C.P. Generally questions of negligence, contributory negligence and proximate cause are for the jury; it is only in exceptional cases that they may be decided as matters of law. Rule 344(f)10, R.C.P.

Plaintiff contends defendant was not free from negligence as a matter of law. Of course, he has the burden to prove defendant's negligence by substantial evidence of sufficient weight to generate a jury question. Christensen v. Kelley, 257 Iowa 1320, 1325, 135 N.W.2d 510, 513. He argues there was sufficient evidence to require submission of at least five of his pleaded specifications of negligence and Bair's operation of his vehicle did not constitute an independent intervening cause.

Defendant contends the trial court properly directed a verdict as plaintiff's evidence fails to establish any negligence on his part. He argues there is evidence he did maintain a proper lookout, yield the right-of-way, was not negligent in backing onto a highway when there were no vehicles in view or within 470 feet, there was no evidence he was meeting plaintiff and failed to drive on his right-hand side nor was he driving over a hill. Defendant further contends the action of the trial court was correct because the evidence correctly established Bair's negligence was the sole proximate cause of plaintiff's injuries. As to this affirmative defense defendant would have the burden of proof. As to the duty owed by defendant in backing his vehicle from a private driveway onto a public highway, both parties appear to be in agreement. They cite Carstensen v. Thomsen, 215 Iowa 427, 245 N.W. 734.

The authorities seem to agree as to the extent of this duty.

'Backing a motor vehicle from private property onto a public highway is an operation demanding a high degree of skill and caution to avoid danger or injury to any vehicle on the highway, and one engaged in such operation must use greater care than is required of one driving along the highway.

'In backing an automobile from a private driveway onto a public street, the driver must exercise such care as a prudent person, with realization of the extreme danger, would exercise under similar circumstances, and he may be required to exercise a higher degree of care than when going forward onto a highway.

'In the exercise of due care, a motorist backing from a driveway should maintain a proper lookout, give a warning as to his intentions, and bring the vehicle to a stop at the end of the driveway, and a failure to exercise any of these precautions may constitute negligence.' 3 Blashfield Automobile Law and Practice, Third Ed., § 120.17.

In 8 Am.Jur.2d, Automobiles and Highway Traffic, § 793, it is stated:

'However, it has been stated that more than usual care is required in backing out of a private driveway, and that one backing from private property onto a public highway must use greater care than would...