Schreiber Mills, Inc. v. Lee County

• Decision Date: 11 March 1958
• Docket Number: No. 49353,49353
• Citation: 249 Iowa 746,88 N.W.2d 811
• Parties: SCHREIBER MILLS, Inc., a Corporation, Appellee, v. LEE COUNTY and Albert B. Vonderhaar, Appellants.
• Court: Iowa Supreme Court

Page 811

88 N.W.2d 811

249 Iowa 746

SCHREIBER MILLS, Inc., a Corporation, Appellee, v. LEE COUNTY and Albert B. Vonderhaar, Appellants.

No. 49353.

Supreme Court of Iowa.

March 11, 1958.

Joseph L. Phelan, Fort Madison, for appellants.

Roy W. Deitchler, Fort Madison, for appellee.

PETERSON, Chief Justice.

This is an action for property damages resulting from a collision between a Chevrolet automobile owned by plaintiff and driven by Ralph Meer, and a truck loaded with rock owned and driven by defendant, Albert B. Vonderhaar. The action was dismissed by the court as to defendant, Lee County. The collision occurred on January 15, 1954, at about 10 A. M., three miles southeast of town of West Point, on Highway 103. The highway runs northwest and southeast at this point. Vonderhaar was driving southeasterly and Meer northwesterly. The collision was in front of the Eugene Pieper farm, where defendant was turning across the highway into the Pieper driveway. The left front bumper of the truck struck the left rear bumper of Meer's car, causing the car to turn completely over, landing on its wheels about 20 feet from the truck. Plaintiff claims damages to Chevrolet in amount of $1,419.41. The jury rendered verdict in favor of plaintiff for $1,150.60. Defendant appeals.

Appellant assigns two errors: 1. The trial court should have submitted to the jury an instruction requested by defendant as to doctrine of last clear chance. 2. The court should have admitted certain evidence of a witness Dewey Sprott which was proffered and admission denied.

The only eyewitness testimony in the case was that of Ralph Meer, driver of plaintiff's car, and the defendant. There was one other witness for plaintiff and three other witnesses for defendant, but their testimony was circumstantial. Much of the testimony of Meer and defendant was in direct conflict.

I. Appellee contends appellant did not comply with R.C.P. 196, 58 I.C.A., as to submission of instruction to the jury concerning doctrine of last clear chance. The record is not clear as to trial court's submission of proposed instructions to counsel in final form, and appellant making objections to same in writing or dictated into the record. However, simultaneously with consideration of instructions by the court and counsel for both parties, defendant seems to have requested instructions Nos. 1 to 9, inclusive. Appellant assigns only as error the failure to submit requested instruction No. 9 pertaining to doctrine of last clear chance. The trial court gave consideration to this submitted instruction at the time of discussion of instructions with counsel, and we will give the question consideration.

In order to analyze the doctrine of last clear chance as same pertains to the case at bar, it is necessary that we make a synopsis of the testimony of Ralph Meer, driver of plaintiff's car, the defendant, and supporting witnesses.

Meer testified he was proceeding northwesterly on Highway 103. About three miles north of West Point he drove his car over the crest of a hill. There was mist in the air and the concrete roadway was slightly wet. There was no ice on the roadway. As he was descending the hill, and about 400 feet distant, he saw the truck of defendant approaching him on the right hand side of the road. When Meer was about 150 feet from the truck, defendant suddenly turned across the road to enter a driveway at the Eugene Pieper farm. Defendant gave no signal, by hand or otherwise, prior to turning. Meer testified he was driving between 50 and 55 miles per hour. In trying to avoid striking defendant's truck broadside he turned to the right and out on the shoulder adjoining the pavement. The shoulder was level for a distance of eight or ten feet. He almost succeeded in driving around defendant's truck, but as he testified: 'His (defendant's) left front bumper hit my left rear bumper'. The impact resulted in plaintiff's car being completely turned over and landing on its wheels about 20 feet from the truck. At the instant of contact he threw himself down in the front seat and succeeded in avoiding personal injuries. After both cars came to rest the front part of defendant's truck was over in the Pieper driveway, and the back wheels 'were right at the edge of the highway or were just on the highway.' He testified as to following conversation between the two parties immediately after the collision: 'Q. (to Meer) Will you state what was stated by Mr. Vonderhaar? A. He stated that he didn't see me coming, didn't know where I came from and that he had gone--was hauling rock for a road and he had gone by the road that he was supposed to turn off on, and he was turning around in this farm yard to go back to this road and he said that he didn't see me at all.'

Defendant testified he was driving southeasterly on Highway 103 and had missed his road and wanted to turn around in the Pieper driveway. As he approached the driveway he slowed down to let another car pass and just as he made the turn he noticed plaintiff's car and stopped about two or three feet over the center line. He watched the car and it seemed to swerve. It slipped around on the road and clicked defendant's front bumper. He did not give a signal because as he started into the driveway he could see no one coming from the front or the rear. Then he saw Meer several hundred feet away; quoting from his testimony: 'He was coming very fast; I would say maybe seventy miles an hour or a little faster. I stopped because I was afraid if I would keep going he would hit me broadside. There was plenty of room for him to go around me on the north. There was also plenty of room for him to go around me on the south. * * * Just before the impact the back of the car swung around as he tried to get over and it looked like he threw himself in the front of the seat. His left rear bumper clicked the left front bumper of my truck. * * * I don't remember whether I told Meer I didn't see him or not. I couldn't say. I didn't know. * * * I don't remember if I gave a signal or not, I might have not. There was no one coming, there was no reason to--that I seen at the time, anyway.'

The only other witness for plaintiff was Mr. Mosley, deputy sheriff. He arrived at the scene sometime after the accident and took some photographs which are shown in the record, and made measurement as to skid marks. He testified there was mist in the air, but there was no ice on the pavement. Meer's skid marks extended from about 150 feet southeast of the Pieper driveway to the point of contact between the two vehicles. He also stated: 'I observed some debris on the right hand side of the pavement opposite the driveway into the Pieper farm at the point of impact'.

Defendant tendered testimony by four witnesses. Henry Metzger drove the car which passed defendant's truck at about the time he started to turn. He was several hundred feet ahead of Meer. He gave no direct testimony as to the collision. Mr. and Mrs. Pieper were in the house, heard the noise of the collision, and came out. They could only describe the location of the truck and the car as to their driveway and the fact that there was mist in the air, but no ice on the pavement. The only other witness was Dewey Sprott, concerning whose testimony appellant assigns error. We will consider the assignment in the next division.

Appellant contends that on the basis of the above outlined situation the trial court should have instructed the jury on the doctrine of last clear chance as against plaintiff, and favorable to defendant. This question has not heretofore been before this court. We have considered the doctrine in many cases, but it has always been on the basis of the matter of last clear chance as being against defendant and favorable to plaintiff. McCormick v. Ottumwa Ry. & Light Co., 146 Iowa 119, 124 N.W. 889; Wilson v. Illinois Central Railway Co., 150 Iowa 33, 129 N.W. 340, 34 L.R.A.,N.S., 687; Bourrett v. Chicago & N. W. R. Co., 152 Iowa 579, 132 N.W. 973, 36 L.R.A., N.S., 957; Carr v. Inter-Urban Ry. Co., 185 Iowa 872, 171 N.W. 167; Miller & Kizer v. Des Moines City Ry. Co., 196 Iowa 1033, 195 N.W. 600; Nagel v. Bretthauer, 230 Iowa 707, 298 N.W. 852; Menke v. Peterschmidt, 246 Iowa 722, 69 N.W.2d 65; Strom v. Des Moines & Central Iowa Railway Co., Iowa, 82 N.W.2d 781.

The doctrine of last clear chance involves a theory that if plaintiff is guilty of contributory negligence, but is in peril because of defendant's negligence, or is oblivious to peril, and defendant becomes aware of the peril and can save plaintiff, he is obligated to do so. Under such conditions plaintiff is entitled to this last chance, sometimes called humanitarian chance, in spite of his contributory negligence which would normally defeat his cause of action. The doctrine was clearly and briefly stated in Winegardner v. Manny, 237 Iowa 412, 21 N.W.2d 209: 'The doctrine applies where a defendant is aware of plaintiff's perilous position in time of have avoided the accident by the exercise of ordinary care but fails to do so. The doctrine refers to negligence after negligence. It is a phase of the doctrine of proximate cause. The theory is that the later negligence becomes the proximate cause'. The doctrine as to stated is supported by the following citations: Groves v. Webster City, 222 Iowa 849, 854-857, 270 N.W. 329; 5 Am.Jur. 778, §§ 489, 490; 4 Blashfield Cyc., Auto. L. & Pr., Perm.Ed., § 2801, Pages 536-538; 2 Berry Automobiles, 7th Ed., 366, § 2.337; Annotations, 92 A.L.R. 47; 119 A.L.R. 1041.

A comprehensive and detailed definition of last clear chance, together with support for appellee's position, appears in 32 A.L.R.2d 547, Annotation, as follows: 'Some courts take the view that a defendant may not invoke the last clear chance doctrine. This view is based upon a conception of the doctrine as embracing four elements, the existence of all of which is essential to its application: (1) plaintiff's inability to...