Steele v. Brada

Citation213 Iowa 708,239 N.W. 538
Decision Date16 December 1931
Docket NumberNo. 40935.,40935.
PartiesSTEELE v. BRADA ET AL.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Floyd County; J. J. Clark, Judge.

This was an action brought by the plaintiff, Richard Steele, against the defendants, George Brada and Marvin F. Schlick, to recover damages for personal injuries received by him, and alleged to have been caused by the negligence of the defendants. There was a trial to a jury, which returned a verdict for the plaintiff. From the judgment entered thereon, the defendants appeal.

Reversed.R. W. Zastrow, of Charles City, and Guy S. Calkins and C. C. Putnam, both of Des Moines, for appellants.

Larson & Carr, of Charles City, for appellee.

KINDIG, J.

At about 4 o'clock in the afternoon of October 28, 1929, the plaintiff-appellee, Richard Steele, while riding on a bicycle over the Cedar river bridge in Charles City, was struck by a towed truck, belonging to the defendant-appellant Marvin F. Schlick, being towed over the bridge by an automobile owned and driven by George Brada, defendant and appellant. This towing car was pulling the towed truck over the bridge in the same direction that the bicycle was traveling. The bridge extends across the river in a northeasterly and southwesterly direction. It is 258 feet long and 19 feet one inch wide.

Appellee, who was working for the Sherman Nursery, claims to have ridden his bicycle onto the bridge from the south and had proceeded on the structure about thirty feet when struck by the towed truck. Appellant George Brada operated a garage and had been called out into the country to tow in the said truck owned by the appellant Marvin F. Schlick. The truck was unable to run on its own power. A wide band was used to attach the defective truck to the towing car. Dale Reetz, an employee of the appellant Marvin F. Schlick, was at the wheel of the towed truck to manage it while being towed. When appellant Brada's towing automobile approached appellee on his bicycle, the former sounded the horn as a warning to the latter. Upon hearing the automobile horn of the towing car appellee turned to his left and permitted appellant Brada's towing car to pass to the right, but he was struck by the towed truck.

There is a dispute at this point concerning what, if any, warning appellee had of the approaching towed truck. On the one hand, appellants claim that a warning was given the appellee by Dale Reetz, who, as before explained, managed the towed truck; while on the other hand, appellee contends that he heard no such warning. Appellee says the towed truck crashed into him without warning. Furthermore, it is claimed by appellee that the appellant Brada was moving the towing car at an excessive rate of speed. Again it is said by appellee that the appellant Schlick was negligent, first, because no warning of the approaching truck was given; second, because the attendant, Dale Reetz, failed to properly put on the brakes; and, third, because the towed truck was not properly controlled by the said Reetz.

Both appellants pleaded that the appellee was guilty of contributory negligence. That is true, the appellants declare, first, because the appellee turned to the left rather than the right to permit the car and truck to pass; and, second, because when turning to the right he did not remain in a place of safety until both car and truck had passed, but, after the towing car had gone by, negligently swerved to the right into the on-coming truck.

Throughout its instructions, with the exception of one paragraph, the district court told the jury that the appellee could not recover if his negligence contributed to the injury. In paragraph 6, however, the trial court interposed another theory, and because of this novation the appellants complain. This new theory in effect amounted to an instruction on the last clear chance doctrine. Complaint was made of this by the appellants because a cause of action on that basis was neither pleaded nor proven. To understand the instruction fully, it will be necessary to consider the various portions thereof.

First the district court told the jury that the appellants as well as the appellee had a right upon the highway on the occasion in question. Then that court told the fact-finding body that, if the appellants overtook the appellee “when so traveling (in the manner and way before explained), and desired to travel faster than he (appellee), was traveling, they (appellants) had a right to signal him (appellee) by sounding the horn to warn him of their (appellants') intention to pass him (appellee) on the left side, in which case it would have been his (appellee's) duty to remain on the right side until they passed him, unless as he (appellee) claims, they (appellants) were so close upon him (appellee) and that they (appellants) were going at such a speed as to render it dangerous to him (appellee) to remain where he was, in which case he (appellee) would have a right to do whatever ordinary care would require under the circumstances in the way of increasing his (appellee's) own speed or turning to the left side of the street in order to escape danger, and if you find that he (appellee) did this, and passed to the left and remained and traveled on the left of them (appellants) as far as reasonable care would require, he (appellee) would not be guilty of contributory negligence in that respect.”

Apparently the district court was asking the jury to apply that rule of law which will not permit a defendant to complain after he has put the plaintiff in a place of danger because the latter does not act discreetly in avoiding the catastrophe. See Lein v. John Morrell & Co., 207 Iowa, 1271, 224 N. W. 576;Elmore v. Des Moines City Railway Co., 207 Iowa, 862, 224 N. W. 28;Kern v. Des Moines City Railway Co., 141 Iowa, 620, 118 N. W. 451, 455. During the discussion in the Kern Case it was said: “If it [the railway company] created the peril, it cannot be heard to say. ‘Well. you do not act discreetly in avoiding it.’ The effect of the district court's instruction up to this point is that the appellee would not necessarily be negligent in turning to the left rather than the right. Nowhere, however, up to this place, is there indication in the instructions anywhere that the appellee could recover were he guilty of contributory negligence. Following the foregoing statement in instruction 6, the...

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4 cases
  • Strom v. Des Moines & Central Iowa Ry. Co.
    • United States
    • Iowa Supreme Court
    • May 7, 1957
    ...Law Review 309, et seq.; Anno. 25 A.L.R.2d 254, 281. The Crowley case is disapproved on a point not here presented in Steele v. Brada, 213 Iowa 708, 712, 239 N.W. 538, 540. The doctrine of last clear chance presupposes plaintiff's contributory negligence. Lauman v. Dearmin, supra, 246 Iowa ......
  • Vreugdenhil v. Kunkel
    • United States
    • Iowa Supreme Court
    • April 8, 1964
    ...doctrine into effect. As bearing on this question see Pinckney v. Watkinson, 254 Iowa 144, 151, 116 N.W.2d 258, and Steele v. Brada, 213 Iowa 708, 713, 239 N.W. 538, 540. Thus the question as to defendant's ability to avoid the collision must be determined here as of the time he came over t......
  • Menke v. Peterschmidt
    • United States
    • Iowa Supreme Court
    • March 8, 1955
    ...facts making it applicable by a preponderance of the evidence; Nagel v. Bretthauer, 230 Iowa 707, 712, 298 N.W. 852, 854; Steele v. Brada, 213 Iowa 708, 239 N.W. 538. An absence of evidence, a failure to show something from which it may be fairly found the defendant had the last clear chanc......
  • Steele v. Brada
    • United States
    • Iowa Supreme Court
    • December 16, 1931

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