Sisson v. Weathermon

Decision Date04 April 1961
Docket NumberNo. 50171,50171
Citation252 Iowa 786,108 N.W.2d 585
PartiesCheryll I. SISSON, Administratrix of the Estate of Ralph Fletcher Sisson, Deceased, Appellee. v. J. R. WEATHERMON and Marion Weathermon, Appellants.
CourtIowa Supreme Court

Swisher, Cohrt, Swisher & Finch, Waterloo, for appellants.

Alfred A. Beardmore, Charles City, for appellee.

PETERSON, Justice.

Action for damages by plaintiff as administratrix of her deceased husband's estate. He lost his life in an automobile accident. She claims it was due to defendant's negligence.

This accident happened at Waterloo on January 7, 1958, on Highway 63. This highway enters Waterloo on the south edge of the city and runs in a northwesterly direction into the center of the city. Not very far north of the city limits are two streets known as Ansborough Avenue and Ridgeway Avenue, crossing Highway 63. Between the two avenues is a valley with the concrete on Highway 63 running across a creek in the form of a bridge at the bottom of the valley. Mr. Sisson lost his life on the highway northwest of the bridge.

Mr. Weathermon works for Rath Packing Company. Mrs. Weathermon works for the Waterloo School District. He was the owner of a Plymouth car which he used in driving to and from his work. A Chevrolet car was registered in the name of both defendants, and Mrs. Weathermon used same in driving to and from her work.

On January 7, 1958 Mr. Weathermon arose at 5 o'clock a. m., and went out to start his Plymouth car. The morning was clear, but very cold; 14 degrees below zero. His car would not start. He then started the Chevrolet and awakened Mrs. Weathermon to come and try to start the Plymouth by pushing it. He drove the Plymouth to guide it and she drove the Chevrolet. They proceeded in their yard about 135 feet out to Highway 63. They then drove on the right-hand side of the highway toward the city for a distance of about 150 feet. The Chevrolet then suddenly stalled and the two cars stood bumper to bumper on the highway.

After making several attempts to start the car without success Mr. Weathermon said he would go and get Mr. Lindemon, a neighbor, to push them.

During this activity of the Weathermons Mr. Ralph Sisson had arrived at his work at the Johnson Dairy, which is about 1/2 mile southeast of intersection of Ridgeway and Highway 63. Mr. Sisson had worked for Johnson Dairy since 1942 and was one of their dependable delivery men. They delivered milk in a truck known as a Divco dairy truck. It was completely enclosed, with doors on each side of the cab for easy entrance and exit. The driver operated the truck from a standing position at all times. He and a companion workman, Mr. Fiala, loaded their trucks at the same time to proceed with their day's work.

Mr. Fiala left first. He drove around the two parked Weathermon cars in the left-hand lane without any difficulty. Mr. Sisson followed him some distance behind, although Mr. Fiala saw his lights come up over the hill and the truck coming down into the valley.

When Mr. Weathermon started bakc to get his neighbor to push their cars he saw the lights of the truck coming toward him. He thought if he could stop the truck he could get the assistance of the truck driver in pushing them. He therefore stepped out into the highway and waved his arms to halt the truck, but Mr. Sisson did not stop.

As Mr. Sisson approached the rear end of the Chevrolet he apparently did not see it until he was between 15 and 20 feet behind the car. The Chevrolet was a two tone green in color with the paint faded and very dirty. The cars and the parties were all in complete darkness with the exception of the fact that there was a full moon, but with very little light from it. One of the questions of fact decided by the jury in the case was whether or not Mr. and Mrs. Weathermon's rear lights were on in the Chevrolet. There is evidence both ways. The jury decided in answer to a special interrogatory that the rear lights were not on.

Mr. and Mrs. Weathermon testified they had turned on the lights in their cars before they started out into the highway and never turned them off. The first people to arrive at the scene of the accident after it happened was Mr. and Mrs. Harold Bown. Mrs. Bown testified:

'Q. As you came down the highway did you see any lights on these parked cars? A. Not to my knowledge.'

Mr. Bown testified: 'When I went past the cars I didn't see any lights on either car. I will swear there weren't any lights on the parked cars.'

At between 15 and 20 feet back of the Chevrolet Mr. Sisson turned quickly to the left to avoid hitting the cars. As he turned his car to the left and then straightened it out, his left wheels drove up on the shoulder of the highway. As shown by the marks of the wheels he drove on the shoulder about 42 feet. After he passed the Plymouth he turned his truck back toward the right-hand lane. In some manner in turning back his truck he lost control of his car and was thrown out violently on the pavement. His truck drove off the highway and some distance over into the field before stopping. In striking the paving Mr. Sisson received severe chest and head injuries from which he died about two o'clock that afternoon.

After Mr. and Mrs. Weathermon saw that Mr. Sisson had fallen out of his truck Mr. Weathermon stayed to watch the two cars and Mrs. Weathermon went back to the house to call the ambulance.

Mr. Sisson was 49 years of age. He had attended college two years. His widow and six children survive him. The eldest son was a graduate of West Point. The next son took his college work at Grinnell and Iowa State Teachers College. The third son took one year college work at Vanderbilt and one and a half years at Iowa State Teachers College. The fourth son was a sophomore at Sioux Falls College when Mr. Sisson died. The older daughter was a senior in high school and the younger daughter was in the seventh grade.

The case was submitted to the jury and a verdict was rendered in favor of plaintiff in the amount of $22,009.85. Defendants have appealed.

Appellants assign the following errors as a basis for reversal: 1. The court erred in overruling defendants' motion to direct a verdict on the ground of contributory negligence of plaintiff's decedent. 2. The court erred in giving instructions 4, 5, 14, 16 and 17. 3. The verdict is excessive, and so excessive as to show passion and prejudice of the jury.

I. The principal contention of appellants is that plaintiff's decedent was guilty of contributory negligence as a matter of law.

In failing to direct a verdict for defendants, the trial court followed our decisions in numerous cases to the effect that the question of contributory negligence is rarely for the court, and ordinarily for the jury. Lawson v. Fordyce, 234 Iowa 632, 641, 12 N.W.2d 301, 306; Leinen v. Boettger, 241 Iowa 910, 919, 44 N.W.2d 73; Strom v. Des Moines & C. I. Ry. Co., 248 Iowa 1052, 82 N.W.2d 781; Plumb v. M. & St. L. Ry. Co., 249 Iowa 1187, 91 N.W.2d 380. The following statement from Leinen v. Boettger, supra, has been approved many times [241 Iowa 910, 44 N.W.2d 82]: '* * * the issue of freedom from contributory negligence * * * is usually one of fact and not of law, and is peculiarly and ordinarily for the determination of the jury, and that it is only in the area and exceptional case, and where the lack of reasonable care is so manifest, flagrant, palpable, that reasonable minds may fairly reach no other conclusion, that the question is one of law for the court. It is ordinary care, and not the highest degree of care that is required. (Citations.)'

Appellants based their contention as to contributory negligence on two specifications: a. Decedent violated the rule of assured clear distance. b. Decedent failed as a matter of law to maintain a proper lookout.

a. Appellants allege violation of Sections 321.384, 321.409 and 321.415. Section 321.384 provides for lights making persons and vehicles discernible at a distance of 500 feet. Section 321.409 provides for specific lighting equipment, and Section 321.415 provides for usage of such equipment.

In the instant case we have a truck coming down a hill on a dark morning, with defendants' cars stopped on their lane of travel in the valley between two hills, without lights. In analyzing the question of assured clear distance it is necessary to refer to Section 321.285 and an amendment thereto in 1935 by the 46th G.A., c. 49. Said Section pertains to speed and provides: 'no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.' In 1935 the following amendment was added: 'such driver having the right to assume, however, that all persons using said highway will observe the law.'

Prior to the amendment we consistently held that a driver who failed to maintain such assured clear distance, and crashed into a vehicle, was guilty of contributory negligence as a matter of law. The cases cited by appellants in support of this contention were in this category.

The latest case cited by appellants is Shannahan v. Borden, 220 Iowa 702, 263 N.W. 39. It was announced about three months after the amendment became effective. In quoting the statute the decision omitted the amendment and made no reference to it. It followed the rule of the cases decided under the original statute. Before the amendment the onus was placed wholly on the motorist who crashed into a parked vehicle. For example in the Shannahan case the parked truck had displayed no rear lights. Yet motion to direct was sustained against the motorist. By later decisions, after adoption of the statute, this cold and hard theory has been changed.

The first case after adoption of the amendment, in which the amendment was fully and comprehensively considered was Central States Electric Co. v. McVay, 232 Iowa 469, 5 N.W.2d 817, 819. This was an action to recover for damages to plaintif...

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