Wagaman v. Ryan

Decision Date03 May 1966
Docket NumberNo. 52038,52038
Citation258 Iowa 1352,142 N.W.2d 413
PartiesMyrtle WAGAMAN, Appellee, v. Jay Oliver RYAN, Appellant.
CourtIowa Supreme Court

F. W. Tomasek, Grinnell, and Cartwright, Druker, Ryden & Fagg, Marshalltown, for appellant.

Lundy, Butler, Wilson & Hall, Eldora, for appellee.

GARFIELD, Chief Justice.

Defendant Jay Oliver Ryan has appealed from judgment on jury verdict of $70,000 in favor of plaintiff Myrtle Wagaman for personal injuries sustained in a head-on collision of automobiles on U.S. Highway 65 south of Iowa Falls.

Errors are assigned in refusing to withdraw a specification of negligence alleged in plaintiff's petition and instructing the jury thereon, in giving jury instructions 6, 10, and 13 and refusal of defendant's requested instruction 4 and, finally, in denying a new trial because of claimed excessive verdict.

The collision occurred May 28, 1962, about 4:15 p.m. Plaintiff, then 45, was driving her 1962 Mercury Comet, weighing 2500 pounds, north with her mother, a niece and a girl friend of the niece as passengers. Defendant, then about 70, was alone in his 1957 Dodge, weighing 3800 pounds, proceeding south. It conclusively appears the cars collided head-on on the east half of the 22-foot, 2-lane highway about in front of Joe's Filling Station at the northeast corner of an intersection of the highway with an east-west gravel road.

Plaintiff's mother and the niece's girl friend were fatally injured. Plaintiff suffered multiple fractures and other serious permanent injuries. The niece, who rode in the rear seat with her friend, was less seriously injured. Defendant suffered a broken leg, chipped elbow, broken jaw and some other less serious injuries. These three survivors of the collision, evidently due to their injuries, have no memory of the actual occurrence. Plaintiff and her niece recall nothing after they passed a so-called park less than a mile south of the place of collision.

According to his testimony defendant recalls nothing after 'apparently a heavy wall of water and extremely heavy gust of wind or small tornado pushed me directly across the road' a moment before the impact. He says he did not see plaintiff's car before the collision. A front wheel of plaintiff's car left a skidmark 27 feet long south of the point of impact so plaintiff evidently saw defendant's car at least a moment before they collided. No skidmark from defendant's car was found.

Defendant pleaded as an affirmative defense that the sudden downpour of rain and overpowering gust of wind constituted an act of God which was the sole proximate cause of the collision.

I. Plaintiff alleged four specifications of negligence against defendant which the court submitted to the jury: 1) Failing to give half the traveled way by turning to the right; 2) Turning his automobile from a direct course upon the highway when such movement could not be made with reasonable safety; 3) Failing to have his vehicle under control; and 4) Failing to keep a proper lookout. Defendant concedes there is ample evidence to justify submission of all but the second of these charges of negligence.

At the close of the evidence defendant moved to withdraw from jury consideration the second charge of negligence on the ground it has no proper application to the evidence. Overruling the motion and giving instruction 8 bearing upon this specification, over defendant's objection upon the same ground as asserted in his motion to withdraw, constitute the first error assigned.

As defendant admits, it is not entirely clear whether plaintiff intended to plead a violation of the part of section 321.314, Code, 1962, which provides 'No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety * * *.' Defendant thinks the point is immaterial because the pleading is in the language of the statute and, it is said, the same logic applies whether plaintiff relies on the statute or common law.

Instruction 8 contains the language quoted from section 321.314, without referring to the statute, and says in substance defendant was required to exercise reasonable care under the circumstances in the matter of yielding the right-of-way by not turning, or making such a turn, when plaintiff's automobile was approaching from the opposite direction and a failure so to do would be negligence. The instruction goes on to say the burden was on plaintiff to prove by a preponderance of the evidence that defendant's car was approaching plaintiff's; defendant intended to and did turn when plaintiff's automobile was so close as to render the turn an immediate hazard, and an ordinarily careful person would not have done so; if the jury finds plaintiff has so proven then it should find defendant negligent in this respect, otherwise not.

Defendant's main argument under this assignment is that this charge of negligence does not apply unless he intended to turn left at either Joe's Station or the intersection south of it, instruction 8 requires a finding of an intent to turn, defendant testified he did not intend to turn near the place of collision but to proceed on south, there is insufficient evidence to support a finding contrary thereto and it must therefore rest wholly on speculation and conjecture.

Authorities are cited for the familiar proposition it is error to submit to a jury a charge of negligence (or, for that matter, any issue) not supported by the evidence or which rests only on speculation and conjecture.

Defendant admits there is substantial evidence that casts doubt on the claim his car was forced into the east lane of travel by sudden heavy rain and high wind and the jury could properly reject this defense. But, we are told, if defendant's explanation of his presence in the wrong lane is rejected, all that is left is the fact of such presence, which is only prima facie evidence of negligence under Code section 321.298 requiring motorists who meet to give half the traveled way by turning to the right.

We are not persuaded it was prejudicial error not to withdraw this second charge of negligence or to give instruction 8 thereon over the objection defendant made to it.

It may be conceded section 321.314 is primarily designed to apply to a motorist who intends to and does turn his vehicle from a direct course upon a highway, usually at an intersection or driveway. But we are not prepared to hold the statute does not apply to such a case as this even in the absence of affirmative evidence of an intent to turn. We think instruction 8 was more favorable to defendant than he was entitled to in requiring proof of such an intent, whether the charge of negligence is considered one of statutory violation or under common law.

We have held several times the common law duty to exercise ordinary care under the circumstances, irrespective of statute, rests on a motorist at all times. Statutory rules of the road are cumulative and do not abrogate this common law duty. They set the minimum, not the maximum, standard of care. Compliance with statute is not all that is required to a motorist. Clayton v. McIlrath, 241 Iowa 1162, 1168, 44 N.W.2d 741, 745, 27 A.L.R.2d 307, and citations; Mongar v. Barnard, 248 Iowa 899, 904, 905, 82 N.W.2d 765, 769; Sisson v. Weathermon, 252 Iowa 786, 797, 108 N.W.2d 585, 590, 591; Christensen v. Kelley, 257 Iowa --, 135 N.W.2d 510, 512.

So here, irrespective of section 321.314, it was defendant's duty to exercise reasonable care under the circumstances not to turn his car into the east lane of travel when plaintiff's car was approaching so close as to render the turn an immediate hazard. It was proper to so instruct the jury as instruction 8 did, provided of course there is substantial evidence of a violation of such duty. We are clear there is such evidence.

The argument that if defendant's explanation of his presence in the wrong lane is rejected, nothing is left but a violation of section 321.298 overlooks the fact that submission of this second charge of negligence required proof defendant turned his car into the path of plaintiff's car when it was so close as to render the move an immediate hazard. Mere failure to yield half the traveled way by turning to the right upon meeting plaintiff's car in violation of 321.298 would not support submission of this charge of negligence.

Defendant also says it is doubtful, in any event, without regard to his main argument, and for a wholly independent reason, that section 321.314 has any application to this case. The point suggested is that a turn from one side of the highway to the other is not a turn from a direct course upon the highway.

It is not at all clear that the point suggested is within the grounds of the motion to withdraw the second charge of negligence and the objection to instruction 8. Of course defendant is not entitled to have considered here a ground of objection to an instruction not timely raised upon the trial. Rule 196, Rules of Civil Procedure; Spry v. Lamont, 257 Iowa 321, 326, 132 N.W.2d 446, 449; Oakes v. Peter Pan Bakers, Inc., 257 Iowa ---, 138 N.W.2d 93, 99.

As we have indicated, we think it was proper to submit this ground of negligence even though section 321.314 is interpreted as now suggested. Turning into the path of an oncoming car on the same straight highway may surely be found a negligent act regardless of whether this statute is violated by doing so.

About the same point suggested here was made in Clayton v. McIlrath, supra, 241 Iowa 1162, 1166, 1167, 44 N.W.2d 741, 744, 27 A.L.R.2d 307. We said the question seems never to have been squarely decided by us and refrained from doing so there. The decision was placed upon a ground similar to that expressed here but language in the cited opinion indicates section 321.314 could be violated by turning to the left to pass a preceding vehicle (page 1170 of 241 Iowa, page 746 of 44 N.W.2d).

II. Instruction 6 relating to plaintiff's...

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