Wegner v. Parcel, No. 4-115/03-0874 (Iowa App. 4/28/2004)
| Decision Date | 28 April 2004 |
| Docket Number | No. 4-115/03-0874,4-115/03-0874 |
| Parties | CHRISTINE WEGNER and DUANE WEGNER, Plaintiffs-Appellants, v. JAMES PARCEL, Defendant-Appellee. |
| Court | Iowa Court of Appeals |
Appeal from the District Court for Floyd County, Stephen P. Carroll, Judge.
Plaintiffs appeal from the district court's order dismissing their negligence claim following a jury verdict finding plaintiff fifty-one percent at fault in a traffic collision. AFFIRMED.
Gregory Landry, Gary Mattson, and Chad Knapp of LaMarca & Landry, West Des Moines, for appellant.
Darrell Isaacson of Laird, Heiny, McManigal, Winga, Duffy & Stambaugh, P.L.C., Mason City, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Christine and Duane Wegner appeal from the district court's order dismissing their negligence claim against James Parcel, following a jury verdict finding Christine Wegner fifty-one percent at fault in a traffic collision. The Wegners contend the district court erred in instructing the jury on Christine's duty to keep a proper lookout, her duty to take an alternate safe route, and her duty to make herself more visible. They also contend the court erred in refusing to instruct the jury there is no legal duty for a person on horseback to ride on a trail, wear reflective clothing, or take actions to be more visible. Finally, they contend the court erred in refusing to instruct the jury on the rights and duties of a person riding a horse on the roadway. We affirm.
On November 7, 2001, at approximately 5:00 p.m., Duane and Christine Wegner were riding on horseback along a trail that runs parallel to Underwood Avenue. Upon reaching the Underwood Avenue bridge, the Wegners stopped and waited for several vehicle to pass. They observed a vehicle approaching a stop sign at an intersection four-tenths of a mile south of the bridge. Without waiting to see which direction the vehicle turned, the Wegners began to cross the bridge.
The speed limit along Underwood Avenue is fifty-five miles per hour. There are no street lamps near the bridge. The bridge is 280 feet long, with safety rails extending an additional seventy-five feet on each end. The total distance to cross the bridge is 430 feet. The bridge sees an average of fifteen hundred vehicles per day.
The sun had set at 4:55 p.m. that day. The Wegners were wearing dark clothing without any reflection. Their horses were dark in color. The Wegners crossed the bridge riding single file with Duane in the lead. Whenever Christine rode along the highway, she kept pressure on the right-hand rein so the horse would not veer into traffic.
James Parcel turned north on to Underwood Avenue and began heading over the bridge with his low beams activated. The first thing Parcel saw was Christine's horse in the road on an angle. Parcel swerved to the left and applied his brakes in an effort to avoid the horse. However, he struck the rear right quarter of the horse with the right front and side of his pickup. Christine was knocked off her horse, causing her severe injuries.
On February 11, 2002, the Wegners filed a petition alleging Parcel was negligent in operating his vehicle. The case was tried to a jury in April 2003. The jury found Parcel was negligent, and that his negligence was a proximate cause of damage to Christine Wegner. However, the jury found Christine was fifty-one percent at fault and Parcel was forty-nine percent at fault. As a result, the court entered an order of dismissal on May 20, 2003.
We review the district court's instructions to the jury for errors at law. Kurth v. Iowa Dept. of Transp., 628 N.W.2d 1, 5 (Iowa 2001). Parties are entitled to have their legal theories submitted to the jury so long as the instructions embodying those theories correctly state the law, have application to the case and are not otherwise covered in the court's instructions. Vasconez v. Mills, 651 N.W.2d 48, 52 (Iowa 2002). In determining whether substantial evidence supports the submission of an instruction, we construe the evidence in the light most favorable to the party seeking submission. Sleeth v. Louvar, 659 N.W.2d 210, 215 (Iowa 2003). Evidence is substantial if a reasonable person would accept it as adequate to reach a conclusion. Vasconez, 651 N.W.2d at 52.
The Wegners allege the district court erred with respect to four instructions. They contend the district court improperly instructed the jury on Christine's duty to maintain a proper lookout, her duty to take an alternate safe route, and her duty to make herself more visible. They further contend the district court erred in refusing to submit two of their requested instructions to the jury: (1) an instruction regarding the absence of a legal duty for a person on horseback to ride on a trail, wear reflective clothing, or take action to become more visible, and (2) an instruction regarding the rights and duties of a person riding a horse on the roadway being the same as the rights and duties applicable to the driver of a vehicle.
In Instruction No. 21, the court enumerated Parcel's affirmative defenses, which include his claim Christine Wegner was negligent in failing to keep a proper lookout. The court defined the term "proper lookout" in Instruction No. 18:
"Proper lookout" is the lookout a reasonable person would keep in the same or similar situation. It means more than looking and seeing. It includes being aware of the operation of the driver's vehicle in relation to what the driver saw or should have seen. A horse rider need not keep a lookout to the rear all the time, but must be aware of the presence of others when the rider's actions may be dangerous.
A violation of this duty is negligence.
The Wegners concede this instruction is a correct statement of law. However, the Wegners argue there was not substantial evidence Christine breached her duty to maintain a proper lookout.
The Wegners' objection to the instruction rests primarily with their contention Christine did not violate any duty to keep a proper lookout to the rear.
The duty of lookout to the rear does not require constant attention at all times, but only sufficient observation to establish an awareness of the presence of others at time when a maneuver is contemplated which may endanger a following vehicle.
McCoy v. Miller, 257 Iowa 1151, 1157, 136 N.w.2d 332, 336 (1965). The Wegners argue that because Christine was not contemplating a maneuver that would endanger a following vehicle, such as turning or swerving, she was not required to keep lookout to the rear. See Vasconez, 651 N.W.2d at 52 (). We conclude their interpretation of the law and the facts are erroneous.
The facts are sufficient for a reasonable jury to find Christine Wegner failed to maintain a proper lookout at the time she executed her turn on to the Underwood Avenue bridge. The Wegners observed Parcel's vehicle coming to a stop at an intersection four-tenths of a mile south of the bridge. However, instead of waiting to see if Parcel was turning north to proceed in their direction, the Wegners endeavored to cross the bridge. Duane Wegner testified that if he had known Parcel's vehicle was turning north, he would have waited to cross the bridge. Such actions could be considered by a reasonable factfinder as failure to maintain a proper lookout.
The Wegners' actions, when considered with the surrounding circumstances, could also be found to violate the duty to maintain a proper lookout.
A proper lookout is common law duty placed upon everyone operating a motor vehicle upon the highways of this state. This duty, under the best authorities and most sound reasoning, requires a lookout not only to the front and sides but also to the rear, with the question as to its being a proper or sufficient lookout determined by the particular surrounding circumstances as revealed by the evidence then under consideration.
Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1011, 82 N.W.2d 82, 86 (1957). The jury was instructed that a rider must be aware of the presence of other when the rider's actions may be dangerous. When considered in context, the Wegners' actions could be found to be dangerous by a reasonable factfinder: It was after sunset and dark outside; there were no lights on the bridge; the Wegners were wearing dark clothing and riding dark horses without any reflection; the bridge is well traveled at a speed of fifty-five miles per hour; the Wegners had a distance of 430 feet to cross; the Wegners saw Parcel's vehicle at a nearby intersection, but did not wait to see whether he turned towards them; and Christine testified she would have waited to cross the bridge if she knew Parcel going north, but she never turned around to check his direction.
Instruction No. 21 also lists as one of Parcel's affirmative defenses Christine Wegner's failure to take an alternate safe route. In Instruction No. 22, the court outlined the alternate safe route defense:
Parcel must prove each of the following propositions:
1. Christine Wegner knew of the dangerous condition.
2. Christine Wegner knew an alternate safe route was available.
3. Christine Wegner failed to take an alternate safe route.
The phrase "knew or should have known" means the person had actual knowledge or that a reasonably observant person under the same or similar circumstances would have had knowledge.
The Wegners allege the instruction materially misstates the law regarding horse riders and the duty to take an alternate safe route.
In deciding to instruct the jury on the alternate safe route affirmative defense, the district court cited the case of Mays v. Siekman, 247 N.W.2d 613 (Neb. 1976), which is factually...
To continue reading
Request your trial