Smith v. Pust

• Decision Date: 24 November 1942
• Docket Number: 46048.
• Citation: 6 N.W.2d 315,232 Iowa 1194
• Parties: SMITH v. PUST.
• Court: Iowa Supreme Court

6 N.W.2d 315

232 Iowa 1194

SMITH v. PUST.

No. 46048.

Supreme Court of Iowa

November 24, 1942

Rehearing Denied Feb. 12, 1943.

D. D. Murphy & Son, of Elkader, for appellant.

C F. Neylan and J. J. Hyde, both of Elkader, for appellee.

STIGER Justice.

The accident occurred on the morning of March 30, 1940, about two miles south of Elkader on Primary Highway No. 13. Robert Dinan was the driver of the car in which plaintiff was riding and Emogene Bassett drove defendant's car in which were four passengers.

As appellant's principal contention is that his motion for directed verdict should have been sustained, that there was not sufficient evidence of negligence or proximate cause to take the case to the jury, we will refer to the testimony most favorable to plaintiff where there is a conflict in the evidence.

While Mrs Bassett was driving north on the highway the left front tire was punctured. She drove onto the right shoulder and stopped the car. She then drove onto the pavement to go to an oil station about 450 feet ahead. After driving about two car lengths she stopped the car to look at the tire. She testified:

"It was partly on the rim and I decided it was not safe to run. I left the car because I had come to the conclusion that in the shape the tube was I felt it was impossible to go on. The car would move with difficulty and I did drive along the pavement two car lengths. It could be driven. I got out and looked at the tire. Mr. Downey came to our assistance. I heard Mr Downey state it was on the rim. Mr. Downey was looking at the tire."

We will now refer to some of the evidence introduced by plaintiff. Harold Downey, in passing appellant's car, observed the down tire. He sent his father back to the car to tell the occupants to drive the car to the filling station and he would change tires for them. They refused to do this because it would "hurt the car." Downey then took his equipment to the car and asked that it be moved off the pavement onto the shoulder. This request was refused because they did not want to hurt the tire. Downey testified that the shoulder was in fairly good shape; that it wasn't real hard and wasn't real soft and that it would have been practical for him to change the tire on the shoulder if it had been driven there. The only trouble was that the tire was flat, but was on the rim. "You could drive the car to the oil station, but it might hurt the tire is all."

Appellant's car was stalled on the right or east side of the pavement just north of the north end of a curve. While Downey was fixing the tire, Mrs Bassett went to the rear about two lengths of the car to flag automobiles approaching on the curve from the south and two of the occupants stood at the front of the car. About this time the Dinan car was approaching the stalled car from the south and rounded the north end of the curve. Dinan testified that he could see the appellant's car when he was about 125 feet south of it; that at this time there was a car approaching from the north on the west one-half of the pavement and was directly west or opposite of appellant's car which had stopped in that position or was being driven very slowly. Mrs. Bassett was standing on the east shoulder. Dinan was driving from 45 to 50 miles per hour. When he saw this situation before him, he immediately applied his brakes, but was unable to stop his car and struck the rear of appellant's car at a speed of about 10 miles per hour.

I. Plaintiff claims Mrs. Bassett violated the provisions of section 5030.01, 1939 Code and that the circumstances did not bring her within the exception provided by section 5030.02, 1939 Code. The statutes read:

"5030.01 Stopping on traveled way. Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least twenty feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of two hundred feet in each direction upon such highway."

"5030.02 Disabled vehicle. Section 5030.01 shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position."

Appellant's first proposition is "An automobile which is standing partly on the pavement and partly off the pavement and at the time undergoing repairs in daytime within clear view of oncoming traffic with attendants attempting to warn oncoming traffic is not 'parked within the meaning of sec. 5030.01 and sec. 5030.02."'

We should first state that several witnesses testified that the four wheels of appellant's car were on the right side or east half of the pavement. We are unable to agree with appellant's construction of the statutes.

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