Schroeder v. Kindschuh

• Decision Date: 19 November 1940
• Docket Number: 45319.
• Citation: 294 N.W. 784,229 Iowa 590
• Parties: SCHROEDER v. KINDSCHUH et al.
• Court: Iowa Supreme Court

294 N.W. 784

229 Iowa 590

SCHROEDER v. KINDSCHUH et al.

No. 45319.

Supreme Court of Iowa.

November 19, 1940

Appeal from District Court, Mitchell County; M. H. Kepler, Judge.

Action for damages to property arising out of an automobile collision. The answer contained a general denial and asserted a counterclaim. The jury returned a verdict for the defendants on the counterclaim. Judgment was entered thereon. Plaintiff appeals.

Affirmed.

L. E Liffring, of St. Ansgar, and Ansel J. Chapman, and Senneff & Senneff, all of Mason City, for appellant.

Ray G Cummings, of Osage, for appellees.

MILLER, Justice.

The collision involved herein occurred about 1:30 A. M. September 20, 1939, on a dry black-top highway, No. 227, about three miles south of Stacyville, Iowa. Both of the automobiles were headed south. Plaintiff's car was struck in the rear by defendants' car. Both cars were damaged. Plaintiff brought suit, seeking to recover $255.50 as the cost of repairing his car and $94.50 damages for loss of use of the car. Defendants' answer admitted that the collision occurred, but denied that defendants were negligent in respect thereto or that plaintiff was free from contributory negligence. The answer also asserted a counterclaim for $85 as damages to defendants' car on the theory that plaintiff was negligent and defendants were not. The jury returned a verdict in favor of defendants for $85 on the counterclaim. Plaintiff appeals.

Defendants' version of the accident was that their car was being driven south on the highway in a lawful manner. Plaintiff overtook and passed defendants' car before the collision occurred. After passing defendants' car, plaintiff overtook an automobile of one James Day that was also headed south but was parked on the west side of the highway for the purpose of changing a tire. Plaintiff pulled over to the east side of the highway to avoid the Day car, slowed down and, when alongside of the Day car, stopped suddenly, without signalling his intention so to do, completely blocking the highway, as a result of which, defendants' car collided with the rear of plaintiff's car, damaging both vehicles.

As often occurs in cases of this kind, the testimony is conflicting as to many of the details of the collision. In considering the verdict of the jury for the defendants on their counterclaim, we must consider the evidence in the light most favorable to the defendants. So considered, the evidence was such as to warrant the jury finding the following facts:

Just prior to the collision, the cars of the plaintiff and the defendants were both proceeding south on Highway No. 227 south of Stacyville, at about 1:30 A. M. The pavement was black-top, estimated to be about 30 feet wide with a narrow strip of grass between the pavement and the ditch on each side of the road. Some distance north of the scene of the collision, plaintiff passed defendants' car. At the scene of the collision, James Day's car was parked on the west side of the pavement with the right-hand side of the car about a foot from the ditch. At the time of the collision, Day was standing on the left side of his car. He had a flat tire on that side of the car. Plaintiff slowed down as he approached Day's car, pulled over to the left-hand side of the highway and stopped with the left side of his car about five or six feet from the east side of the highway and with about a 30 foot distance between his car and Day's car.

There is a dispute whether plaintiff's car had come to a full stop. Plaintiff testified that he was moving slowly and was beginning to pull over to the right-hand side of the road. Day testified for plaintiff on direct examination that he did not know whether plaintiff had stopped. On cross-examination, he testified that he had stopped. Several of defendants' witnesses testified that plaintiff's car was stopped. The testimony being in conflict, it was for the jury to determine this fact and they were warranted in finding that plaintiff had stopped his car on the left-hand side of the highway immediately before the collision occurred.

Defendants' driver saw Day's car and pulled out around it. He noticed plaintiff's car but did not know that it was stopped until he was alongside of Day. He was then travelling at a speed variously estimated from 20 to 35 miles an hour. He tried to stop but could not. The collision resulted.

I.

At the close of the evidence, plaintiff made a motion for a directed verdict on defendants' counterclaim, asserting that under the evidence defendants were guilty of contributory negligence as a matter of law because their car was not operated at such a speed that it could be brought to a stop within the assured clear distance ahead and the driver was not keeping a proper lookout. The court overruled the motion. The ruling is asserted to be erroneous. We find no merit in such contention.

The assured clear distance ahead rule, Section 5023.01 of the Code 1939, has been the basis of a vast amount of litigation before this court. We have repeatedly held that, where a parked car is struck from the rear and the circumstances are such as to show a violation of the requirements of the rule the driver of the overtaking vehicle will be held to be guilty of negligence as a matter of law. Swan v. Dailey-Luce Auto Co., 221 Iowa 842, 265 N.W. 143; Ellis v. Bruce, 217 Iowa 258, 252 N.W. 101; Lindquist v. Thierman, 216 Iowa 170, 248 N.W. 504, 87 A.L.R. 893; Peckinpaugh v. Engelke, 215 Iowa 1248, 247 N.W. 822; Albrecht v. Waterloo Const. Co., 218 Iowa 1205, 257 N.W. 183; Shannahan v. Borden Produce Co., 220 Iowa 702, 263 N.W. 39.These cases recognize, however, that the rule is not applicable where the circumstances are such as to present a legal excuse for violating the statute or diverting circumstances from which the jury would be warranted in holding that the statute was not applicable. The facts presented by such cases were not analogous to those presented by the record herein....