Wachter v. McCuen

• Decision Date: 05 May 1959
• Docket Number: No. 49695,49695
• Citation: 250 Iowa 820,96 N.W.2d 597
• Parties: James H. WACHTER, Plaintiff-Appellant, v. J. Ivan McGUEN, Defendant-Appellee.
• Court: Iowa Supreme Court

Page 597

96 N.W.2d 597

250 Iowa 820

James H. WACHTER, Plaintiff-Appellant, v. J. Ivan McGUEN, Defendant-Appellee.

No. 49695.

Supreme Court of Iowa.

May 5, 1959.

Duffield & Pinegar, Des Moines, and Robert I. Ulstad, Fort Dodge, for appellant.

Boardman, Cartwright & Druker, Marshalltown, for appellee.

THOMSPON, Chief Justice.

On April 18, 1956, about 3:50 p. m., the plaintiff was driving his automobile south on Highway No. 14 about ten miles south of Marshalltown. A loaded gravel truck owned by the defendant and driven by one Edward Peterson, aged 19, an employee, was likewise proceeding south on the same highway. Highway No. 14 is a two lane 18 foot pavement at all material points. When plaintiff first observed the truck it was on the east or left side of the highway, moving at a speed of about five miles per hour. Plaintiff slowed his speed somewhat, but as he neared the truck it was still on the left side of the road, and he decided to pass it on its right. When he was within some fifty feet of the truck it suddenly swung to the right across the pavement. Both vehicles were then within a short distance of an overpass over the Chicago, Milwaukee, St. Paul and Pacific Railway Company's trucks. Plaintiff being then unable to stop pulled to the shoulder or his right, but was then confronted with a deep depression of some forty feet and, immediately in front of him, the abutment of the bridge over the tracks. He testified that the cab of the truck then swung to the left and he thought he could pass on the right; but as he tried to do so the truck again swung to the right and caught his car between the larger vehicle and the side of the bridge, dragging it for some distance and causing the injuries of which plaintiff complains.

The trial court submitted the case to a jury, which returned a verdict for the plaintiff in the sum of $16,249.00. Thereafter the defendant moved for judgment notwithstanding the verdict, and this motion was granted and judgment entered accordingly. Plaintiff has appealed.

I. While there were several grounds alleged in the motion for judgment notwithstanding verdict, the issue in this court has narrowed to the sole question of the contributory negligence of the plaintiff as a matter of law. The defendant concedes that there was a jury question as to the negligence of the driver of his truck.

In considering whether the contributory negligence of the plaintiff appears as a matter of law, we of course follow the familiar rule that the evidence must be taken in the aspect most favorable to him which is reasonably possible. But we think his own testimony is so definite on the vital question in the case that the rule has little application here. It so clearly shows his violation of Section 321.299, Code of 1954, I.C.A., that there is no room for a jury determination of the weight of the evidence. We quote the section herewith:

'321.299 Overtaking a vehicle. The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:

'The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.

'Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.' This section is followed by Section 321.300 which makes it a criminal offense for the driver of the overtaken vehicle to fail to heed the signal provided in Section 321.299; by Section 321.301, relating to the burden of proof in prosecutions under Section 321.300; and by Section 321.302, setting out certain exceptions under which passing on the right is permissible. None of these exceptions is applicable here. The pavement was wide enough for only two lanes of traffic; and it is not contended that the driver of the offending truck was engaged in making a left turn when plaintiff attempted to pass. In fact there was no side road or farm lane between the point where the truck was located when plaintiff first observed it and the overpass where the collision occurred, into which the truck might have turned to its left.

A gravelled country road known in the record as the Ferguson road comes into Highway No. 14 from the east about 450 to 500 feet north of the overpass bridge. The defendant's truck, equipped with a two wheel trailer loaded with gravel, came into No. 14 from the Ferguson road. The entire outfit of the truck and trailer was about 37 feet long. It turned left upon No. 14, and proceeded south along the left or east side of the road for some distance. It was so traveling when plaintiff first observed it when he was a short distance north of the Ferguson road intersection. The reason given by the driver Peterson in his testimony was that new yellow lines had been painted on No. 14 that day; he had been arrested and fined $19 that morning for driving over the new paint, and he did not wish a repetition of this misfortune. He said that the newly painted yellow lines stopped about 120 feet north of the overpass bridge, so that he could then cross to the right side without danger of further prosecution. His dislike for further trouble with the law is understandable; but his way of resolving his dilemma only involved him in additional litigation. What with prosecutions in the morning and collisions in the afternoon, it is evident this was not one of young Mr. Peterson's more fortunate days.

While plaintiff said he at first thought the truck was coming toward him, then that it was stopped on the left or east side of the highway, he testified 'I realized the truck was headed in the same direction that I was going about the time I got to the gravel road.' He honked his horn and applied his brakes, although not with full force. He didn't apply his brakes 'hard' at that time. The record further shows this from his cross-examination: 'Q. Well, now, suppose that when you sounded your horn, right at that time the truck had turned to his right and got over on the right hand side of the road. Do you say to the jury then there wouldn't have been any accident, any collision? A. I could have gotten stopped. I'm pretty sure of it'. There is also this:

'Q. * * * So that we have you just about at the gravel road and the truck approximately 200 feet north of the bridge at the time you realized that it was going south on the wrong side of the road? A. I think 150 feet would probably be about more correct. And then I would say yes to your question.

'Q. * * * At the time you saw this truck on the wrong side of the road moving south and realized it was moving south, your car was substantially at the gravel road and the truck was approximately 150 feet north of the bridge? A. I think that's just about right.

'Q. Is that a fair statement? A. That's as fair as we can get.

'Q. If at that time the truck at that very moment had turned to its right and gotten across to its right-hand lane, there wouldn't have been any accident, would there? A. I could have stopped.'

In the often cited case of Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552, we undertook to lay down a rule for the guidance of drivers and of litigants in this class of negligence cases. With one exception not material here we said that failure to obey statutes or ordinances governing the use of vehicles on the highways is negligence, not merely prima facie evidence thereof. 214 Iowa at page 915, 243 N.W. at page 554, supra. Since then we have followed that rule. Florke v. Peterson, 245 Iowa 1031, 1034, 65 N.W.2d 372, 373, and cases cited; Anderson v. Holsteen, 238 Iowa 630, 634, 26 N.W.2d 855, 858; ('This statement, as to the duty of a defendant applies equally to the duty of a plaintiff who claims he was free from negligence contributing to the injury.') It seems evident beyond argument that the plaintiff here was violating Section 321.299, supra by attempting to pass the truck on the right. This is pointed up by the provisions of Section 321.302, which state the exceptions to the rule. We must consider that the legislature meant these to be the only exceptions; if others had been intended they would have been stated. Likewise we have Section 321.300 which seems to have been enacted specifically in contemplation of such a situation as arose here. Following the provisions of Section 321.299 which require the driver of the overtaken vehicle to give way to the right on audible signal, Section 321.300 makes it a misdemeanor for him to fail to do so; and Section 321.301 deals with the burden of proof as to whether the signal was heard. There is no intimation in any of these sections that one who finds his passage to the left blocked by a vehicle in the center or on the left side of the road may thereupon and without violation of the statute pass on the right.

There is, of course, a further question in many cases as to whether the violation of a statute, which is negligence per se, is contributory negligence. That is to say, did the negligence contribute directly or indirectly in any degree to the accident and resulting injuries? In several cases cited by the plaintiff it was held that there was a jury question on this point; and of course we are fully cognizant of the rule that contributory negligence is ordinarily a question to be determined by the triers of fact and it is only exceptionally the court can say as a matter of law either that there was negligence of the plaintiff or that it contributed to the injury. But here we have the negligence established as a matter of law by the violation of the statute; and under the circumstances the fact that it contributed to plaintiff's injuries...