Vreugdenhil v. Kunkel

• Decision Date: 08 April 1964
• Docket Number: No. 51297,51297
• Citation: 127 N.W.2d 630,256 Iowa 460
• Parties: Ed VREUGDENHIL and Ronald Huls, Appellees, v. Darrell Dale KUNKEL, Appellant.
• Court: Iowa Supreme Court

Page 630

127 N.W.2d 630

256 Iowa 460

Ed VREUGDENHIL and Ronald Huls, Appellees, v. Darrell Dale KUNKEL, Appellant.

No. 51297.

Supreme Court of Iowa.

April 8, 1964.

Kindig, Beebe, McCluhan & Rawlings, Sioux City, for appellant.

Spencer M. Day and Harry H. Smith, Sioux City, for appellees.

LARSON, Justice.

Sometime between 5 and 6 P.M. on November 10, 1961, the plaintiff Ed Vreugdenhil, age 51, was using a tractor and wagon belonging to plaintiff Ronald Huls, to haul corn from a field to close-by buildings over a graveled country road near Westfield, Iowa. He received serious personal injuries and the rig was damaged when the wagon was struck from the rear by an automobile driven by the defendant Darrell Kunkel. Plaintiffs' action in two counts resulted in a jury verdict in favor of Vreugdenhil for $2,595.00 and for Huls for $187.76, and judgment accordingly.

The amount of the damages is not in issue, but defendant advances two propositions in support of his assignments of error. He maintains the court erred in submitting to the jury both specifications of negligence and the doctrine of last clear chance, or in submitting either issue, and that his motion for a directed verdict should have been sustained. In Proposition No. 2 he maintains that if the court properly submitted plaintiffs' specifications of negligence (a), (b) and (c), it committed reversible error in submitting the question of the last clear chance doctrine and he is entitled to a new trial. We cannot agree with either contention.

As a general proposition all theories of recovery properly pleaded and all specifications of negligence which are sustained by the evidence should be submitted to the jury. Therefore, a brief statement of the evidentiary facts, viewed in the light most favorable to appellees, needs to be considered. When Mr. Vreugdenhil drove his rig from the cornfield onto the gravel road he looked in both directions, left and right, and saw nothing coming. It was about 5:25 P.M., still daylight, and visibility was good. He entered at the crest of a hill and could see a quarter of a mile to the left and about forty rods to the right. Turning right, he proceeded down an incline at about 5 to 7 miles per hour, about the speed of low gear in a car. He stayed entirely on the right-hand side of the 28-foot roadway some 3 feet from the road edge, which left about two thirds of the roadway open for other vehicles. When he had traveled down the slope about 145 feet, he was struck from behind with no warning. The force of the collision broke the tractor drawbar, drove the four or five hundred pound wagon box loaded with 400 pounds of corn over his back, pinning him between it and the tractor steering wheel, and shoved them all about 20 feet into the right-hand ditch. The main point of impact was defendant's right front fender, and the car's radiator ornament was buried in the rear of the wagon box. The wagon and the car were practically a total loss. Plaintiffs' preliminary case was predicated largely on circumstantial evidence as they did not call defendant, the only one who could testify as to his manner of driving, as their witness.

Defendant, age 21, testifying on his own behalf, said he first saw the wagon as he came over the brink of the hill at about 45 miles per hour. He said the accident occurred about seven minutes to six, that it was dusk or dark and he had his bright lights on, that it was approximately 140 feet from the hilltop to the point of impact, that when he saw the wagon he 'honked the horn, applied the brakes and pulled over to the left', that he slid his wheels some 40 feet in a futile effort to stop, and that the time lapse 'between the time I saw the wagon and the time I hit him (was) about fifteen seconds, twenty.' As a resident of that community some 6 or 7 years, he drove over this road two or three times a month and knew the road was commonly used to haul farm equipment, especially in the spring and fall. He was going home after a day's work for a nearby neighbor.

It was stipulated that on that date sunset was at 5:09 P.M., so that if the accident happened before 5:39 P.M. the statute requiring lights on plaintiffs' equipment was not violated (Section 321.384, Code, 1962, I.C.A.); if after, contributory negligence would bar recovery under the specifications of negligence.

We are satisfied there was substantial evidence to justify submission of plaintiffs' specifications of defendant negligence, which were: (a) failure to have his car under control; (b) failure to drive his automobile in such a manner as to be able to stop it in the assured clear distance ahead; and (c) failure to keep a proper lookout on the road ahead. We do not understand the defendant seriously contends otherwise. He does contend (1) that there was compelling evidence of plaintiff contributory negligence in that Vreugdenhil operated the tractor after dark without lights and had no wagon box reflectors; (2) that by pleading last clear chance plaintiffs as a matter of law admit negligence, which would bar recovery under their action for specific negligence; and (3) that the evidence is conclusive that defendant did not, in fact, have a clear chance to avoid the accident after discovering Vreugdenhil in a position of peril. Although the first and third contentions involve fact questions, we shall consider all of them together in connection with the theory upon which the doctrine of last clear chance rests.

I. The doctrine of last clear chance has often been considered by this court, and the proper rules to follow have been fully discussed. Menke v. Peterschmidt, 246 Iowa 722, 724, 725, 69 N.W.2d 65, 68, and citations. While there has been some confusion as to the underlying theory of this doctrine, and we have said several times that it is an exception to the rule barring recovery to one who has been guilty of contributory negligence (Gearhart v. Des Moines Railway Co., 237 Iowa 213, 21 N.W.2d 569; Lynch v. Des Moines Railway Co., 215 Iowa 1119, 245 N.W. 219; and others) we have also held to the causation theory for this rule support. Winegardner v. Manny, 237 Iowa 412, 413, 21 N.W.2d 209; Groves v. Webster City, 222 Iowa 849, 270 N.W. 329. The latter view refers to negligence after negligence and is a phase of the doctrine of proximate cause. We need not decide which of these theories we prefer here for under this record there is neither an admission of negligence nor such compelling evidence of plaintiff neglect as would require a finding as a matter of law that either plaintiff was guilty. The vital evidentiary issue here, as we see it, was whether it was dark or past the hour when lights for such vehicles were required. The evidence being in dispute, that issue was for the jury.

II. Although, as generally understood, the doctrine of last clear chance presupposes contributory negligence of plaintiff (Olson v. Truax, 250 Iowa 1040, 1048, 97 N.W.2d 900, 905), plaintiffs point out their allegation as to last clear chance was in the alternative and as such it was permissible. Kuehn v. Jenkins, 251 Iowa 557, 561, 100 N.W.2d 604. From the record it appears defendant's answer to plaintiffs' original petition alleging specific negligence, affirmatively alleged the accident occurred as a result of plaintiff's negligence. In plaintiffs' reply they specifically denied that allegation and alleged further 'that in the event it be determined that the plaintiffs or either of them are held to have been negligent, then said plaintiffs in the alternative hereby plead the 'last clear chance doctrine' and state that the defendant was negligent in failing to either stop his car, or turn(ing) said car to the left over the unoccupied portion of the road * * *.' (Emphasis supplied.) Although we do not find the point raised in the court below nor in defendant's brief and argument, we are satisfied it was not improper for plaintiffs, by way of avoidance of defendant's plea of contributory negligence, to amend their pleading so as to plead in the alternative that defendant had the last clear chance. This, in effect, is what they did by putting those allegations in the reply. As an alternative pleading it was proper. There is no merit in the contention it confused the jury. Under these pleadings and the court's clear instructions the issues raised were quite clear. Furthermore, the reply did not admit plaintiff negligence. It does not follow from the fact that last clear chance presupposes negligence on the part of the plaintiffs that other charges of negligence may not be submitted to the jury along with the theory of last clear chance. Strom v. Des Moines & Central Iowa Ry. Co., 248 Iowa 1052, 1069, 82 N.W.2d 781, 791, and citations; Glover v. Vernon, 226 Iowa 1089, 1100, 285 N.W. 652; Kuehn v. Jenkins, supra. In the Strom case we said: 'If the evidence warranted submission of this theory (last clear chance) it should have been submitted for determination of the jury in the event plaintiff was found guilty of contributory negligence. And this is true although plaintiff also alleged other acts of negligence against defendant together with her freedom from contributory negligence. (Citations).'

Since plaintiffs by their reply did not admit negligence, the court did not err in submitting Instruction 20 to the jury, unless of course there was no substantial evidence to sustain the allegation of last clear chance. A review of the relevant evidence obviously revelas a submission on that doctrine was correct.

III. The rule is well settled that the requisites for the application of this doctrine are substantial...