Schwickerath v. Maas

• Decision Date: 08 April 1941
• Docket Number: 45514.
• Parties: SCHWICKERATH v. MAAS.
• Court: Iowa Supreme Court

297 N.W. 248

230 Iowa 329

SCHWICKERATH v. MAAS.

No. 45514.

Supreme Court of Iowa.

April 8, 1941

Appeal from District Court, Chickasaw County; H. E. Taylor, Judge.

Suit by driver of motor vehicle against owner of an oil truck, to recover damages for personal injuries sustained in a collision between the two vehicles. Trial to a jury, which returned a verdict for the defendant. Plaintiff has appealed. Opinion states the facts.

Reversed.

Sullivan & Scholz, of New Hampton, and Elwood, Lyons & Elwood, of Cresco, for appellant.

Geiser & Donohue, of New Hampton, for appellee.

MITCHELL, Justice.

Plaintiff 20 years of age, driving her brother's Chevrolet 1935 coupe, accompanied by her younger sister, age 17, drove west from New Hampton, Iowa, about 9:30 A. M. on primary highway No. 18, which is a paved highway eighteen feet in width. Highway No. 18 is intersected by a road that runs north and south. When she arrived at the crest of a hill, about 350 feet east of the intersection, plaintiff observed defendant's oil truck proceeding south toward the intersection at a speed of approximately twenty miles an hour.

The truck appeared to slow down as it approached the " Stop" sign located at the north entrance to the intersection and continued to slow down as he approached the paved portion of highway No. 18, which is forty-one feet south of " Stop" sign. The approach to pavement was slightly up-grade from low spot about 300 feet north of intersection to about twenty-five feet north of the center of the intersection. The travelled portion of the approach spreads out fan shaped from the " Stop" sign to the pavement and strikes the pavement on the west just about at the west fence line. Plaintiff and defendant were both familiar with the intersection and knew the location of the " Stop" sign. When defendant's truck arrived opposite " Stop" sign, plaintiff was approximately ten rods east of intersection. Truck did not stop at " Stop" sign but continued south and west around the curve approach but appeared to be slowing up. When truck reached north edge of pavement, plaintiff had just entered intersection from the east. Plaintiff first realized it was not going to stop just after she entered intersection. She immediately applied her brakes, turned slightly to left (south) and held on to steering wheel. Cars collided about twenty feet west of intersection. Plaintiff observed deep ditches on both sides of highway No. 18 at place of collision and crest of hill to the west, and flume about 300 feet west. Brakes took hold but couldn't stop in time. Plaintiff testified that she thought and expected defendant's truck to stop, and that she thought she could not turn further to the left at her speed without going into the ditch.

Plaintiff was injured, and this action was commenced by her next friend to recover damages. There was a trial to a jury, which returned a verdict for the defendant. Plaintiff has appealed.

Before we consider the errors set forth by appellant, upon which she seeks a reversal, we will consider appellee's contention that the alleged errors, if any, are without prejudice for the reason that appellant's own evidence shows that she was guilty of contributory negligence as a matter of law, and that appellee's motion to direct, should have been sustained.

It is appellee's contention that as appellant approached the intersection in question, she came up a steep hill, and because of the hill her view was obscured until she was between 300 to 350 feet east of the intersection; that she was driving between 40 and 45 miles per hour, and that she did not apply the brakes until she entered the intersection; that appellant violated the provisions of Section 5023.04, in failing to reduce her speed, and have her car under control when approaching and transversing an intersection.

There is evidence from which the jury could have found that for a distance of between 300 to 350 feet, appellant's view of the intersection was unobstructed, that she saw the appellee's truck approaching; that she knew of the " Stop" sign; that this was a paved highway; that she applied the brakes as she entered the intersection.

The only case discussed by appellee is that of Lang v. Kollasch, 218 Iowa 391, 255 N.W. 493, which was decided when Section 5043 of the 1935 Code was the law of the state.

The Lang case involved an obscured intersection, while in the case at bar, there was a good view of the intersection for a distance of between 300 to 350 feet.

Appellant approached this intersection at the rate of speed between 40 and 45 miles an hour. It was a paved highway, while the day was cloudy, visibility was good, and the pavement was dry. She knew of the stop sign. She saw appellee's oil truck approaching the intersection. She had a right to believe that appellee would obey the law and stop the truck before entering the intersection. As soon as she realized the appellee was entering the intersection without stopping, she applied the brakes. Certainly under the record in this case, the jury could have found that she had control of her car upon entering the intersection.

In Orth v. Gregg, 217 Iowa 516, 250 N.W. 113, 115, this court said: " Plaintiff's right to assume that defendant would obey the law is an important consideration in determining what reasonable care required him to do for his own safety. * * * What constitutes such care is usually a jury question."

In Newland v. G. McClelland & Son, 217 Iowa 568, at page 575, 250 N.W. 229, at page 232, we said: " The record presents a situation in which it could be found that the circumstances producing the collision came into existence and produced their results in but a few seconds. What the decedent did and what he could have done for his own safety in this fleeting moment were clearly questions for the jury."

In the case of Murphy v. Iowa Electric Co., 206 Iowa 567, 220 N.W. 360, 362, speaking through Justice Kindig, this court said: " The presence or absence of contributory negligence, generally speaking, is peculiarly a question for the jury, rather than the court, to detect and settle. * * * If there is a conflict in the evidence as to what the person accused of contributory negligence did or did not do, the question is then one for the jury. Likewise, even though it is known what was done by that individual in this regard, yet, if his conduct is such that there may fairly be different opinions with respect to it, and one man honestly and reasonably says it was in accord with ordinary prudence, while another just as sincerely and with equal reason contends it was not, then there is a jury question."

Under the record in this case, the trial court was right in overruling the motion to direct and submitting the case to the jury.

The main ground for reversal relied upon by appellant in her brief and argument is that the court improperly restricted her attorneys in their examination of the jury on the voir dire on the question of insurance. The vital question, therefore, is: Did the lower court exceed its discretion under the record made in this case? To properly determine this question it is necessary to briefly summarize the record made in this case before the jury was selected. The case was called for trial and there was on file an application filed by the appellee stating that on the date of the accident the appellee was insured and carried a public liability policy issued by the Fidelity & Casualty Company of New York, a stock company, and that said corporation was not operated on a mutual assessment basis. The application also set out a complete list of the panel of the jury called to serve as petit jurors upon this case and that the Fidelity & Casualty Company of New York had examined its files and records to determine whether any of the jurors named on the panel were agents, officers, stockholders or in any other manner interested in said corporation at the time of the trial and from the examination it was found that no member of the panel was so interested. This was duly sworn to by the vice-president of the Fidelity & Casualty Company of New York. The appellee asked the court to admonish the plaintiff's attorneys, on their preliminary examination of the jury, not to interrogate any of the jurors selected as to whether they were officers, agents, stockholders or in any manner interested in any automobile liability company or the Fidelity & Casualty Company of New York. The defendant requested the court to rule upon this application and pleading prior to the time the jury was selected.

At the time the application was presented, certain statements were made by the attorneys and the court. We quote from the abstract:

" Mr. Donohue: There is also, Your Honor, the application with reference to the examination of the jury setting forth that the insurer in the case is a stock company, and also the showing that no member of the jury is a stockholder, agent. There is also the affidavit of the vice-president of the company setting forth that there is no officer, stockholder, policy holder, agent or anyone in any way or manner interested in this insurance company on the jury, and that we are a stock company.

Mr. Lyons: I would like to be heard on that application, Your Honor.

The Court: Yes.

Mr. Lyons: In the first place, it is one of the most unusual documents ever presented in court. It charges counsel with unethical practice. It is equivalent to asking the Court to enjoin the attorney from illegal and unethical practice of law.

Mr. Donohue: It is commonly used in Iowa. You haven't been here for a number of years.

Mr Lyons: I still think ethics are obtainable in the courts of Iowa. I am glad I wasn't associated in this case at the time the application was filed. It says, ...