Sexauer v. Dunlap

• Decision Date: 14 December 1928
• Docket Number: 39008
• Citation: 222 N.W. 420,207 Iowa 1018
• Parties: FRED J. SEXAUER, Appellant, v. JOHN DUNLAP, Appellee
• Court: Iowa Supreme Court

222 N.W. 420

207 Iowa 1018

FRED J. SEXAUER, Appellant, v. JOHN DUNLAP, Appellee

No. 39008

Supreme Court of Iowa, Des Moines

December 14, 1928

REHEARING DENIED MARCH 8, 1929.

Appeal from Marshall District Court.--B. F. CUMMINGS, Judge.

Action for damages resulting from a collision between automobiles driven by the respective parties. The court directed a verdict in behalf of the defendant, and the plaintiff appeals.

Reversed.

F. E Northup and John McLennan, for appellant.

C. H E. Boardman, for appellee.

FAVILLE, J. STEVENS, C. J., and EVANS, DE GRAFF, ALBERT, MORLING, and WAGNER, JJ., concur.

OPINION

FAVILLE, J.

The facts are not in material dispute. It appears that, on or about the 31st day of August, 1924, the appellant, in company with other persons, was driving eastward on the public highway known as the Lincoln Highway at a place about six miles west of the city of Marshalltown. At said place, there is a highway from the south which forms a junction with said Lincoln Highway, but does not cross the same to the north. Said highway from the south was concealed from one driving eastward on the Lincoln Highway by a bank about eight feet high, and by trees. There were no marks or signs upon the Lincoln Highway, indicating the existence of said highway to the south. The appellee resided in the vicinity, and was familiar with the entire surroundings. The appellant was a stranger to the situation. The appellant was driving at a speed of approximately twenty-seven miles per hour, at the time of the collision. The appellee drove northward upon the Lincoln Highway on the west or left side of the highway upon which he was driving, and turned to the left upon said Lincoln Highway. In so doing, he did not keep to the right of the center of the intersection, but turned within approximately three feet of the left side of the corner of the intersection, toward the west, thus crossing the path of appellant's car at an angle. The cars collided, resulting in the injury complained of. Neither party sounded any signal. The appellant set the brakes upon his car as soon as he saw the appellee's car. The collision occurred on the south part of the Lincoln Highway, and west of the beaten path of the road from the south. After the impact, the cars moved toward the northeast. The left front fender of appellee's car was hooked in the right-hand wheel of appellant's car. The road was dry and rough where the accident occurred. The appellant's car was on the right-hand side of the road, near the edge. The road had been graded. When appellee's car was first seen by the occupants of appellant's car, it was about thirty feet away. The accident occurred about one o'clock in the afternoon. As appellee approached the said Lincoln Highway, he was not looking to the west, in the direction from which the appellant's car was approaching, but was looking toward a party sitting at his right, or to the east. The appellant testified that he was probably ten feet west of the west line of the north and south highway when he first saw appellee's car, and that appellee was then at about the south line of the Lincoln Highway. The appellant was driving upgrade, and the appellee downgrade. There was no evidence that appellee applied the brakes to his car.

I. The undisputed record shows that the appellee was entirely familiar with the surroundings; that he approached the highway in question from a point where he knew that his approach was obscured and hidden from automobiles passing east on the Lincoln Highway. The statute in force at that time (Chapter 275, Acts of the Thirty-eighth General Assembly), among other things, provided:

"Sec. 26. * * * (d) The operator of a motor vehicle, in turning to the right from one street or highway into another, shall turn the corner as near the right hand as practicable, and, in turning to the left from one street or highway into another, shall pass to the right of and beyond the center before turning."

The evidence discloses that the appellee failed to obey this statutory requirement, but, on the contrary, turned a "short corner" in entering the Lincoln Highway, and did not pass to the right and beyond the center of said highway.

The appellee contends, however, that, even though the record may have disclosed a question for the jury in regard to the claimed negligence of the appellee, the evidence fails to show that said negligence, if any, was the proximate cause of the injury complained of. At this point in the case, we are of the opinion that the case presented a fact question for the determination of the jury as to whether or not, under all the facts and circumstances disclosed, the alleged negligence of the appellee was the proximate cause of the injury resulting to the appellant. It is only in those cases where it is clear and apparent from the record that the claimed negligence was not the proximate cause of resulting injury that the court is justified in directing a verdict. Fitter v. Iowa Tel. Co., 143 Iowa 689, 121 N.W. 48; McSpadden v. Axmear, 191 Iowa 547, 181 N.W. 4; Carlson v. Meusberger, 200 Iowa 65, 204 N.W. 432. In this case, the question of the appellee's negligence, and whether or not said negligence, if established, was the proximate cause of the injury to the appellant, was a question proper to be submitted to the jury for its determination.

II. Appellee contends, however, that the court correctly directed a verdict in favor of the appellee for the reason that the undisputed evidence shows that the appellant was guilty of contributory negligence in the operation of his car, and that such contributory negligence was the proximate cause of the injury. It is contended that the appellant was guilty of contributory negligence in failing to give to the appellee the right of way at the intersection. The statute in force at the time of the transaction in question (Chapter 275, Acts of the Thirty-eighth General Assembly), provided that:

"Sec. 26. * * * (i) Where two vehicles are approaching on any public street or highway so that their paths will intersect and there is danger of collision, the vehicle approaching the other from the right shall have the right of way."

It is the appellee's contention that, under this section of the statute, he had the right of way at the intersection. A difficult question confronts us at this point. The undisputed evidence shows that the appellant had no notice or knowledge of the existence of the highway upon which the appellee was driving. Under the evidence, it was entirely obscured from his view, and there is no evidence of anything to apprise the appellant, or anyone in his situation, of the existence of such a highway. The statute in question obviously was intended to apply only to a situation where the driver of a vehicle knew, or by reason of surrounding circumstances was bound to know, of the existence of another highway that might intersect his path. The statute contemplates not merely a situation where the paths of the two vehicles will intersect, but also a situation where "there is danger of collision." This must be observable, in order for the statute to be applicable. It could scarcely be said that a driver on a public highway exercising ordinary and reasonable care, without any knowledge of an intersecting highway, or anything to apprise or advise him in any way...