Sergeant v. Challis

• Decision Date: 20 October 1931
• Docket Number: No. 40790.,40790.
• Parties: SERGEANT v. CHALLIS.
• Court: Iowa Supreme Court

213 Iowa 57

238 N.W. 442

SERGEANT

v.CHALLIS.

No. 40790.

Supreme Court of Iowa.

Oct. 20, 1931.

Appeal from District Court, Cedar County; H. C. Ring, Judge.

Action to recover for personal injury, resulting from a collision of automobiles. Trial to the court and a jury. Verdict and judgment for the plaintiff. Defendant appeals.

Reversed.Donnelly, Lynch, Anderson & Lynch, of Cedar Rapids, for appellant.

C. O. Boling, of Tipton, for appellee.

WAGNER, J.

The plaintiff was injured about 7 or 7:15 o'clock p. m., January 27, 1930, by reason of a collision of a Buick automobile, owned and driven by the defendant, and a Ford sedan, owned and driven by one Kemmerer, in which latter car the plaintiff at the time in question was riding in the back seat. One Muirhead was also riding in the front seat of the Kemmerer car. Two men were riding with the defendant at the time in question. The collision occurred in front of the Achey residence, about three miles south of Tipton on a north and south graveled highway; the graveled portion thereof being thirty feet in width. For a considerable distance in the highway, in each direction from the point of collision, there were no hills or inclines to obscure the vision of the driver of each car from that of the other. Kemmerer testifies that he saw the Challis car when he was forty or fifty rods from the place of the collision. The evidence of the plaintiff's witnesses is to the effect that the light on the right side of the Challis car was burning at the time in question, but that the one on the left side thereof was extinguished, and that Kemmerer, the driver of the Ford car, could not tell which light was burning until a very short distance, two or three rods, from the place of collision. The lights on the Kemmerer car were burning.

The defendant testified, in substance, that he saw the Kemmerer car when it was about 400 feet north of the place of collision; that there was nothing to obstruct his view; that it had glaring lights, and they continued so until after the collision. The defendant contends that a short time prior to the collision there was a failure of the lights on his car to work properly, and for that reason he turned on the dimmers. He testified: “After my bright lights jiggled out or went out, I switched over to the dimmers and we were driving slow on account of my lights, because they only showed about 25 feet in front or ahead of the car. I had my dimmers on.” On cross-examination he testified: “I do not know whether both of my dimmers were working, I am not able to say about that. I know that one of them was working at least, * * * I do not know which one of my lights was burning.”

There is evidence on the part of the plaintiff that the defendant was driving at the time in question from forty to forty-five miles per hour, while the evidence of the defendant is that he was driving at a much lesser rate of speed. It had snowed shortly prior to the time of the accident. A planer had gone down the west side of this highway and scraped the snow from the west to the center of the highway, had turned around somewhere south of the place of the collision and was making the return trip, but was a considerable distance south of the place of the collision at the time in question. Thus it is shown that the highway in front of the Achey residence was cleared of snow on the west side. There was a ridge of snow in the center, and approximately three or four inches of snow on the level on the east side of the traveled portion of the highway. The defendant testified: “It is always slippery on snow and was there at the place, car could slip around pretty easy. I did not have my chains on.” The testimony of the plaintiff's witnesses is to the effect that, before the collision, Kemmerer was traveling on the west side of the center of the traveled portion of the road, approximately a foot or so from the west ditch, while the testimony of the defendant's witnesses is that he (the defendant) was traveling on the east side of the center of the traveled portion of the highway, a few feet from the east ditch. The weight of the defendant's car, with the load, was much heavier than that of the Kemmerer car. There was a front end collision on the left side of each. When the cars came to a standstill, the front end of the Kemmerer car was facing the north, or slightly northwest, and very close to the west ditch, while the defendant's car stood to the east thereof and facing slightly northwest. The testimony of plaintiff's witnesses is to the effect that, immediately after the collision, the front wheels of the defendant's car were to the west of the center of the traveled portion of the road, while the testimony of defendant's witnesses is that they were to the east of the center.

It is the contention of the plaintiff that he and Kemmerer, the driver of the Ford car, were free from negligence, and that the cause of the collision was negligence on the part of Challis. The grounds of negligence on the part of the defendant alleged in the petition are as follows:

“(a) In failing to drive his said automobile at the time of the collision and while approaching the point of collision at a careful and prudent speed, but driving it at such times at an unreasonable and improper speed.

(b) In driving his said automobile at the time of the collision and while approaching the point of collision without having the same under control and at a high and dangerous rate of speed.

(c) In driving his said automobile to the left of the center of the road and also to the left of the center of the traveled way at the time of said collision and while approaching the point of collision.

(d) In driving his said automobile at the time of the collision and while approaching the point of collision with only one light burning.

(e) In operating his said automobile at and before the time of said collision without keeping a proper lookout.

(f) In failing to operate and drive his said automobile at and while approaching the point of collision so as to avoid striking the automobile in which plaintiff was riding.

(g) In driving his said automobile at and just before the time of said collision without reducing the speed to a reasonable and proper rate.”

[1] At the close of all the evidence, the defendant moved the court to withdraw from the consideration of the jury all of the charges of negligence alleged in the petition, except the one charge that the defendant failed to turn to the right and to give to the other traveler one-half of the traveled portion of the highway. This motion was overruled. This same proposition was presented to the court by requested instructions offered by the defendant and by exceptions to the instructions given by the court. In stating the issues to the jury, the court copied the aforesaid allegations of negligence from the petition. In subsequent instructions he told the jury that, if they found from a preponderance of the evidence that any one or more of the charges of negligence as set forth in the statement of the issues had been established, and that said negligence was the proximate cause of the collision, and that plaintiff and Kemmerer were free from negligence which in any manner contributed to the collision and consequent injuries to the plaintiff, then their verdict should be for the plaintiff. In this manner the court submitted to the jury all of the aforesaid allegations of negligence, including the failure to keep a lookout. There is no evidence on the part of the plaintiff of any failure by the defendant to keep a lookout, and the uncontradicted evidence of the defendant is to the effect that there was nothing to obstruct his view, and that he saw the Kemmerer car when it was about 400 feet north of the place of the collision, and from that time and place until the time and place of the collision. It is error presumptively prejudicial to submit a material proposition of fact, upon which there is no evidence, to the jury, even though the rule of law as to such proposition be properly stated. See Borough v. Minneapolis & St. Louis Railway Company, 191 Iowa, 1216, 184 N. W. 320;Graves v. Chicago, Rock Island & Pacific Railway Company, 207 Iowa, 30, 222 N. W. 344; Annotations to Code of Iowa, page 1475, and numerous cases there cited.

[2][3] There is evidence of lack of control, of speed greater than is reasonable and proper, having due regard to the conditions then existing, and of driving the automobile at the time of the collision and while approaching the point of collision with only one light burning, which is the substance of the remaining allegations of negligence, except that of failure of the defendant to turn to the right and give to the driver of the Kemmerer car one-half of the traveled portion of the highway, which latter the appellant concedes by his argument to have been proper to submit to the jury. It is the contention of the appellant that all of the remaining grounds of negligence, “excepting the one charge that the defendant failed to turn to the right and give to the other driver one-half of the traveled portion of the highway,” should not have been submitted to the jury, it being his contention that it was improper for the court to allow the jury to find that any one or more of said remaining charges of...